Opinion
2014-05-14
Julia SHEA, respondent, v. MASSAPEQUA UNION FREE SCHOOL DISTRICT, appellant.
Sokoloff Stern, LLP, Carle Place, N.Y. (Stuart Diamond of counsel), for appellant. Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for respondent.
Sokoloff Stern, LLP, Carle Place, N.Y. (Stuart Diamond of counsel), for appellant. Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, LEONARD B. AUSTIN, and COLLEEN D. DUFFY, JJ.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Woodard, J.), entered June 6, 2013, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
To impose liability on a defendant as a result of an allegedly dangerous condition on its premises, there must be evidence that the dangerous condition existed and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time ( see Davis v. Rochdale Vil., Inc., 63 A.D.3d 870, 871, 882 N.Y.S.2d 194;Bluman v. Freeport Union Free School Dist., 5 A.D.3d 341, 342, 772 N.Y.S.2d 527). “A defendant has constructive notice of a dangerous condition when it is visible and apparent, and existed for a sufficient length of time before the accident such that it could have been discovered and corrected” ( Perlongo v. Park City 3 & 4 Apts., Inc., 31 A.D.3d 409, 410, 818 N.Y.S.2d 158;see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774).
Here, the evidence submitted in support of the defendant's motion demonstrated, prima facie, that it neither created the ice condition upon which the plaintiff allegedly slipped and fell, nor had actual or constructive notice of the condition ( see Smith v. Hariri Realty Assoc., Inc., 109 A.D.3d 897, 971 N.Y.S.2d 451;Morreale v. Esposito, 109 A.D.3d 800, 971 N.Y.S.2d 209;Spinoccia v. Fairfield Bellmore Ave., LLC, 95 A.D.3d 993, 943 N.Y.S.2d 601;Alayo v. Port Auth. of N.Y. & N.J., 107 A.D.3d 834, 966 N.Y.S.2d 865). In opposition to this prima facie showing, the plaintiff failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).
Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
The defendant's remaining contention has been rendered academic in light of our determination.