| Smith v Hariri Realty Assoc., Inc. |
| 2013 NY Slip Op 05892 [109 AD3d 897] |
| September 18, 2013 |
| Appellate Division, Second Department |
| Daniel Smith, Appellant, v Hariri RealtyAssociates, Inc., et al., Respondents, et al., Defendant. |
—[*1] Martyn Toher & Martyn, Mineola, N.Y. (Jeffrey P. Yong of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Mahon, J.), dated February 29, 2012, whichgranted the motion of the defendants Hariri Realty Associates, Inc., and Jen-KevManagement, LLC, for summary judgment dismissing the complaint insofar as assertedagainst them.
Ordered that the order is affirmed, with costs.
The plaintiff alleged that he slipped and fell on a patch of ice in a parking lot of ashopping center owned by the defendant Hariri Realty Associates, Inc. (hereinafterHariri), and managed by the defendant Jen-Kev Management, LLC (hereinafterJen-Kev). "[O]wners of real property onto which members of the public are invited havea nondelegable duty to provide the public with reasonably safe premises and a safemeans of ingress and egress" (Sarisohn v 341 Commack Rd., Inc., 89 AD3d 1007, 1008[2011]). A property owner will be held liable for a slip-and-fall accident involving snowand ice on its property only when it created the dangerous condition which caused theaccident or had actual or constructive notice thereof (see Gushin v Whispering Hills Condominium I, 96 AD3d721 [2012]; Littleton vAmberland Owners, Inc., 94 AD3d 953, 954 [2012]; Cantwell v Fox Hill CommunityAssn., Inc., 87 AD3d 1106 [2011]; Sut v City Cinemas Corp., 71 AD3d 759 [2010]; Medina v La Fiura Dev. Corp.,69 AD3d 686 [2010]).
Hariri and Jen-Kev established their prima facie entitlement to judgment as a matterof law by demonstrating that they neither created nor had actual or constructive notice ofthe icy condition alleged to have caused the plaintiff's fall. The plaintiff failed to raise atriable issue of fact in opposition (see Gordon v American Museum of NaturalHistory, 67 NY2d 836 [1986]; Kaplan v DePetro, 51 AD3d 730, 731 [2008]; Fung v Japan Airlines Co.,Ltd., 51 AD3d 861, 862 [2008]). The plaintiff's theory that the ice resulted frompiled snow that melted and then re-froze was speculative and, thus, insufficient to raise atriable issue of fact (seeSpinoccia v Fairfield Bellmore Ave., LLC, 95 AD3d 993, 994 [2012]; Gershfeld v Marine Park FuneralHome, Inc., 62 AD3d 833, 834 [2009]; Fung v Japan Airlines Co., Ltd.,51 AD3d at 862; Zabbia vWestwood, LLC, 18 AD3d 542, 544 [2005]).[*2]
Accordingly, the Supreme Court properly grantedthe motion of Hariri and Jen-Kev for summary judgment dismissing the complaintinsofar as asserted against them. Angiolillo, J.P., Chambers, Sgroi and Cohen, JJ.,concur.