Opinion
156 CA 19-01508
07-17-2020
Danen D. DANIELAK, Claimant-Appellant, v. STATE of New York, Defendant-Respondent. (Claim No. 124855.)
WILLIAM MATTAR, P.C., ROCHESTER (MATTHEW J. KAISER OF COUNSEL), FOR CLAIMANT-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR DEFENDANT-RESPONDENT.
WILLIAM MATTAR, P.C., ROCHESTER (MATTHEW J. KAISER OF COUNSEL), FOR CLAIMANT-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Claimant commenced this action seeking damages for injuries that she allegedly sustained when she slipped and fell on ice on a sidewalk on the campus of SUNY Brockport. Claimant appeals from an order that granted defendant's motion for summary judgment dismissing the claim. We affirm.
It is well settled that " ‘[a] property owner is not liable for an alleged hazard on [its] property involving snow or ice unless [it] created the defect, or had actual or constructive notice of its existence’ " ( Sweeney v. Lopez, 16 A.D.3d 1174, 1175, 791 N.Y.S.2d 237 [4th Dept. 2005] ; see generally Groth v. BJ's Wholesale Club, Inc., 59 A.D.3d 1086, 1086, 872 N.Y.S.2d 828 [4th Dept. 2009] ). Thus, to the extent that claimant contends that defendant was required to apply a de-icing compound to the sidewalk prior to the time the icy condition existed in anticipation of freezing temperatures, we reject that contention (see generally Glover v. Botsford, 109 A.D.3d 1182, 1184, 971 N.Y.S.2d 771 [4th Dept. 2013] ; Yen Hsia v. City of New York, 295 A.D.2d 565, 566, 744 N.Y.S.2d 887 [2d Dept. 2002] ).
Contrary to the further contention of claimant, the Court of Claims properly determined that defendant is entitled to summary judgment insofar as claimant's claim is premised upon the theory that defendant created the dangerous condition on the subject sidewalk (see Elizee v. Village of Amityville, 172 A.D.3d 1004, 1005, 101 N.Y.S.3d 120 [2d Dept. 2019] ; Elassad v. Nastasi, 165 A.D.3d 1040, 1041, 86 N.Y.S.3d 606 [2d Dept. 2018] ; Glover, 109 A.D.3d at 1184, 971 N.Y.S.2d 771 ).
We reject claimant's contention that defendant failed to establish that it did not have actual notice of the dangerous condition. To the contrary, defendant met its initial burden on its motion with respect to actual notice "by submitting evidence that [it] did not receive any complaints concerning the condition of the [sidewalk] and [was] not otherwise aware of any ice or other slippery substance in that location prior to [claimant's] accident" ( Chamberlain v. Church of the Holy Family, 160 A.D.3d 1399, 1402, 75 N.Y.S.3d 718 [4th Dept. 2018] ; see Navetta v. Onondaga Galleries LLC, 106 A.D.3d 1468, 1469, 964 N.Y.S.2d 835 [4th Dept. 2013] ). In opposition to defendant's motion, claimant failed to raise a triable issue of fact with respect to actual notice (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
We also reject claimant's contention that defendant failed to establish that it lacked constructive notice of the dangerous condition. "To receive summary judgment with respect to [claimant's] claim of constructive notice, defendant[ ] had the initial burden of establishing as a matter of law that the alleged icy condition was not visible and apparent or that the ice formed so close in time to the accident that [defendant] could not reasonably have been expected to notice and remedy the condition" ( Waters v. Ciminelli Dev. Co., Inc., 147 A.D.3d 1396, 1397, 46 N.Y.S.3d 756 [4th Dept. 2017] [internal quotation marks omitted] ). Here, although claimant's deposition testimony submitted in support of defendant's motion raises a triable issue of fact with respect to whether the ice was visible and apparent (see Sodhi v. Dollar Tree Stores, Inc., 175 A.D.3d 914, 916, 107 N.Y.S.3d 549 [4th Dept. 2019] ; Gwitt v. Denny's Inc., 92 A.D.3d 1231, 1232, 938 N.Y.S.2d 710 [4th Dept. 2012] ), we nevertheless conclude that defendant established as a matter of law that it did not have constructive notice of the dangerous condition by submitting the opinion of its expert meteorologist that the ice did not "exist[ ] for a sufficient period of time to permit discovery and corrective action by defendant[ ]" ( Wilson v. Walgreen Drug Store, 42 A.D.3d 899, 900, 838 N.Y.S.2d 846 [4th Dept. 2007] ). Claimant failed to raise a triable issue of fact with respect to that issue (see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).