| Sweeney v Doria |
| 2012 NY Slip Op 04150 [95 AD3d 1298] |
| May 30, 2012 |
| Appellate Division, Second Department |
| John Sweeney, Appellant, v Franco Doria et al.,Respondents. |
—[*1] Epstein, Gialleonardo, Frankini & Grammatico, Woodbury, N.Y. (Lillian M. Kennedy ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an orderof the Supreme Court, Suffolk County (Whelan, J.), dated October 28, 2010, which granted thedefendants' motion for summary judgment dismissing the complaint, and (2) so much of an orderof the same court dated September 27, 2011, as, upon renewal, adhered to so much of the originaldetermination in the order dated October 28, 2010, as granted that branch of the defendants'motion which was for summary judgment dismissing the cause of action to recover damagespursuant to General Municipal Law § 205-e.
Ordered that the appeal from so much of the order dated October 28, 2010, as granted thatbranch of the defendants' motion which was for summary judgment dismissing the cause ofaction to recover damages pursuant to General Municipal Law § 205-e is dismissed, as thatportion of the order was superseded by the order dated September 27, 2011, made upon renewal;and it is further,
Ordered that the order dated October 28, 2010, is affirmed insofar as reviewed; and it isfurther,
Ordered that the order dated September 27, 2011, is affirmed insofar as appealed from, and itis further,
Ordered that one bill of costs is awarded to the defendants.
The plaintiff, a police officer employed by the Incorporated Village of Oyster Bay CovePolice Department, was responding to the scene of a possible burglary when he slipped and fellon a patch of clear and thin ice on the exterior step of the defendants' residence. The plaintiffcommenced this action against the defendants alleging causes of action based on common-lawnegligence and General Municipal Law § 205-e. The Supreme Court granted thedefendants' motion for summary judgment dismissing the complaint. Upon renewal, the SupremeCourt adhered to so much of the original determination as granted that branch of the defendants'motion which was for summary judgment dismissing the cause of action based on GeneralMunicipal Law § 205-e.[*2]
With respect to the cause of action alleging common-lawnegligence, the defendants established their entitlement to judgment as a matter of law bydemonstrating that they did not create or have actual or constructive notice of the alleged thin andclear patch of ice which caused the plaintiff to fall (see Werny v Roberts Plywood Co., 40 AD3d 977 [2007]; see also Cantwell v Fox Hill CommunityAssn., Inc., 87 AD3d 1106 [2011]; Aurilia v Empire Realty Assoc., 58 AD3d 773 [2009]; Christal v Ramapo Cirque HomeownersAssoc., 51 AD3d 846 [2008]). The defendant Sandra Doria testified at her depositionthat she did not see any ice on the ground when she traversed the subject step a few hours prior tothe plaintiff's accident. In opposition, the plaintiff failed to raise a triable issue of fact (see Werny v Roberts Plywood Co., 40AD3d 977 [2007]; Carricato v Jefferson Val. Mall Ltd. Partnership, 299 AD2d 444[2002]). Accordingly, the Supreme Court properly granted that branch of the defendants' motionwhich was for summary judgment dismissing the cause of action based on common-lawnegligence.
With respect to the cause of action to recover damages pursuant to General Municipal Law§ 205-e, in response to the defendants' demonstration of their entitlement to judgment as amatter of law, the plaintiff failed to raise a triable issue of fact as to whether he was injured as aresult of any negligence of the defendants in failing to comply with the Village of Oyster BayCove Code § 211-4 (A) (see generally Alvarez v Prospect Hosp., 68 NY2d 320[1986]). Accordingly, upon renewal, the Supreme Court properly adhered to so much of theoriginal determination as granted that branch of the defendants' motion which was for summaryjudgment dismissing the cause of action to recover damages pursuant to General Municipal Law§ 205-e. Balkin, J.P., Leventhal, Hall and Cohen, JJ., concur.