| Cuillo v Fairfield Prop. Servs., L.P. |
| 2013 NY Slip Op 08400 [112 AD3d 777] |
| December 18, 2013 |
| Appellate Division, Second Department |
| Andrew Cuillo, Appellant, v Fairfield PropertyServices, L.P., et al., Respondents. |
—[*1] Vincent D. McNamara, East Norwich, N.Y. (John F. Boland of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Suffolk County (Whelan, J.), dated December 21, 2011,which granted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly slipped and fell on "black ice" on the defendants' premises. Athis deposition, the plaintiff testified that, prior to the accident, he did not see any snow orice on the ground. The plaintiff testified that he did not see any wetness or the subject icycondition, even though he looked down before the incident occurred. As a result of theaccident, the plaintiff commenced this action. The Supreme Court granted thedefendants' motion for summary judgment dismissing the complaint.
A property owner will be held liable for a slip-and-fall accident involving snow andice on its property only when it created the dangerous condition which caused theaccident or had actual or constructive notice of its existence (see Mignogna v 7-Eleven, Inc.,76 AD3d 1054 [2010]; Crosthwaite v Acadia Realty Trust, 62 AD3d 823 [2009]).Here, the defendants established their entitlement to judgment as a matter of law bydemonstrating, prima facie, that they did not create the alleged icy condition or haveactual or constructive notice of it (see Gushin v Whispering Hills Condominium I, 96 AD3d721 [2012]; Murphy v 136 N. Blvd. Assoc., 304 AD2d 540 [2003];Carricato v Jefferson Val. Mall Ltd. Partnership, 299 AD2d 444 [2002]). Inopposition, the plaintiff failed to raise a triable issue of fact. Under the circumstances ofthis case, the Supreme Court providently exercised its discretion in declining to entertainthe affidavits of the plaintiff's experts, who were not previously identified (seeCPLR 3101 [d] [1] [i]; Rivers vBirnbaum, 102 AD3d 26 [2012]; Kozlowski v Oana, 102 AD3d 751 [2013]). In any event,these affidavits were conclusory and insufficient to raise a triable issue of fact (seeAlvarez v Prospect Hosp., 68 NY2d 320 [1986]; cf. Schmidt v DiPerno, 25 AD3d 545 [2006]).
Accordingly, the Supreme Court properly granted the defendants' motion forsummary judgment dismissing the complaint. Balkin, J.P., Lott, Austin and Miller, JJ.,concur. [Prior Case History: 2011 NY Slip Op 33457(U).]