| Cruz v Rampersad |
| 2013 NY Slip Op 06341 [110 AD3d 669] |
| October 2, 2013 |
| Appellate Division, Second Department |
| Jose Cruz, Appellant, v Nankumare Rampersad etal., Respondents. (And a Third-Party Action.) |
—[*1] Andrea G. Sawyers, Melville, N.Y. (Jennifer M. Belk of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Taylor, J.), entered December 21, 2011,which granted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
A real property owner or a party in possession or control of real property will be heldliable for injuries sustained in a slip-and-fall accident involving snow and ice on itsproperty only when it created the alleged dangerous condition or had actual orconstructive notice of it (seeDenardo v Ziatyk, 95 AD3d 929 [2012]; Flores v BAJ Holding Corp., 94 AD3d 945 [2012]; Cantwell v Fox Hill CommunityAssn., Inc., 87 AD3d 1106 [2011]; Crosthwaite v Acadia Realty Trust, 62 AD3d 823 [2009]).Thus, a defendant who moves for summary judgment in a slip-and-fall case has the initialburden of making a prima facie showing that it neither created the hazardous conditionnor had actual or constructive notice of its existence for a sufficient length of time todiscover and remedy it (seeSantoliquido v Roman Catholic Church of Holy Name of Jesus, 37 AD3d 815,815-816 [2007]). Here, the defendants met this burden by submitting evidence sufficientto demonstrate that they did not create or have actual or constructive notice of the icycondition that allegedly caused the plaintiff to fall in their driveway (see Cantwell v Fox HillCommunity Assn., Inc., 87 AD3d 1106 [2011]; Robinson v Trade Link Am.,39 AD3d 616 [2007]; Murphy v 136 N. Blvd. Assoc., 304 AD2d 540[2003]; see e.g. Carpenter v J.Giardino, LLC, 81 AD3d 1231 [2011]; Smith v State of New York, 260AD2d 819 [1999]).
The plaintiff's contention that the defendants did not meet their burden because theyfailed to establish, prima facie, a lack of constructive notice of the icy condition thatallegedly caused him to fall in their driveway, is without merit. "A defendant who hasactual knowledge of an ongoing and recurring dangerous condition can be charged withconstructive notice of each specific reoccurrence of the condition" (Osorio v WendellTerrace Owners Corp., 276 AD2d 540, 540 [2000]). Here, as the plaintiff noted, insupport of their motion for summary judgment, the defendants submitted depositiontestimony establishing that they were aware that water would flow from their gutter andfreeze in front of their home. However, the defendants' general awareness of thisrecurring condition [*2]was insufficient to establish theirconstructive notice of the specific icy condition on their driveway that allegedly causedthe plaintiff to fall (see Solazzov New York City Tr. Auth., 6 NY3d 734, 735 [2005]; Piacquadio v RecineRealty Corp., 84 NY2d 967, 969 [1994]; Pinto v Metropolitan Opera, 61 AD3d 949 [2009]; Arrufat v City of New York,45 AD3d 710 [2007]).
In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court correctly granted the defendants' motion forsummary judgment dismissing the complaint. Mastro, J.P., Balkin, Hall and Austin, JJ.,concur.