| Haberman v Meyer |
| 2014 NY Slip Op 06175 [120 AD3d 1301] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Wayne Haberman, Appellant, v Jack Meyer etal., Respondents. |
Edelstein & Grossman, New York, N.Y. (Jonathan I. Edelstein of counsel), forappellant.
Andrea D. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from (1)an order of the Supreme Court, Queens County (Weiss, J.), dated September 13, 2012,which granted the defendants' motion for summary judgment dismissing the complaint,and (2) an order of the same court dated April 22, 2013, which denied his motion,denominated as one for leave to renew his opposition to the defendants' motion forsummary judgment dismissing the complaint, but treated as one for leave to reargue.
Ordered that the orders are affirmed, with one bill of costs.
The plaintiff, a home health aide caring for the defendants' decedent, allegedlysustained serious injuries when he slipped on a patch of black ice in the decedent'scarport on his way to dispose of a bag of recyclables.
"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" (Cuillo v Fairfield Prop. Servs.,L.P., 112 AD3d 777, 778 [2013]; see Cruz v Rampersad, 110 AD3d 669 [2013]; Olivieri v GM Realty Co.,LLC, 37 AD3d 569 [2007]). To establish their prima facie entitlement tojudgment as a matter of law, the defendants were required to establish that they neithercreated nor had actual or constructive notice of the ice that allegedly caused the plaintiffto fall (see Sweeney vDoria, 95 AD3d 1298, 1299 [2012]; Simon v PABR Assoc., LLC, 61 AD3d 663, 664 [2009];Aurilia v Empire RealtyAssoc., 58 AD3d 773, 774 [2009]; Olivieri v GM Realty Co., LLC, 37AD3d at 569).
Here, the defendants met their prima facie burden by submitting the depositiontestimony of the plaintiff, in which he stated, inter alia, that he had been working for thedefendants' decedent at the premises five days a week for three months prior to theaccident, from 9:00 or 10:00 a.m. to 4:00 p.m., had taken the same path along the side ofthe car in the covered carport to throw out the recyclables at least 10 times during thatthree-month period, did not notice any ice or snow or accumulation of water in that areaof the carport during that period or on the day of the accident, and that he did not see theice on which he slipped, which he described as being clear, until after he [*2]fell. Thus, the defendants demonstrated, prima facie, thatthey neither created nor had actual or constructive notice of the ice that allegedly causedthe plaintiff to fall (see Simon v PABR Assoc., LLC, 61 AD3d at 664; see Werny v Roberts PlywoodCo., 40 AD3d 977 [2007]).
In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman vCity of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v AssociatedFur Mfrs., 46 NY2d 1065, 1067 [1979]). The Supreme Court correctly concludedthat the affidavit and site plan of the plaintiff's expert failed to establish that any poolingcondition allegedly created by the decedent caused the ice to form where the plaintiffslipped and fell.
Contrary to the plaintiff's contention, he was not unfairly prejudiced by the SupremeCourt's refusal to consider his improper surreply affirmation (see CPLR 2214; Graffeo v Paciello, 46 AD3d613 [2007]; Mu Ying Zhuv Zhi Rong Lin, 1 AD3d 416, 417 [2003]).
While the plaintiff correctly denominated his motion as one for leave to renew, asopposed to leave to reargue, the facts set forth in support of renewal were available to theplaintiff at the time he opposed the defendants' motion for summary judgment, and hefailed to demonstrate a reasonable justification for failing to submit such facts on theprior motion (see CPLR 2221 [e] [2], [3]; Okumus v Living Room Steak House, Inc., 112 AD3d 799,800 [2013]; Deutsche BankNatl. Trust Co. v Wilkins, 97 AD3d 527, 528-529 [2012]; Sobin v Tylutki, 59 AD3d701, 702 [2009]; Worrell vParkway Estates, LLC, 43 AD3d 436, 437 [2007]). Accordingly, the plaintiff'smotion for leave to renew his opposition to the defendants' motion for summaryjudgment dismissing the complaint was properly denied. Rivera, J.P., Roman, Sgroi andLaSalle, JJ., concur.