1. Duty and Breach In New York, a property owner owes a duty of care to those lawfully using the property to exercise reasonable care under the circumstances in maintaining the property in a safe condition.DeVeau v. United States, 833 F. Supp. 139, 142 (N.D.N.Y. 1993) (citations omitted). Circumstances bearing on this duty "includ[e] the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk."

Id. at 73, 623 N.E.2d at 544, 603 N.Y.S.2d at 417. But see DeVeau v. United States, 833 F. Supp. 139 (N.D.N.Y. 1993) (finding an assumed duty where the defendant placed mats near the entrance of the post office on a rainy day, creating "what appeared to be a safe, dry place for customers to enter the post office," but in fact creating a dangerous condition in that plaintiff stepped between the mats and slipped on the vinyl floor); Lawson v. State of New York, 207 Misc. 542, 544-45, 139 N.Y.S.2d 525, 527-28 (Ct.Cl. 1955) (finding an assumed duty where plaintiff in diving into designated diving area detrimentally relied on park signage indicating water was six feet deep when it was actually only three and one-half feet deep). In this case, plaintiff has not presented any evidence to suggest that the government's actions placed the plaintiff in a more vulnerable position than he would have been in had the procedures not been in place, nor has he presented any evidence to suggest that his reliance on the government's procedures led him to dive when he did. He does not contend that he knew that the NPS

In order to recover from defendant ACP, plaintiffs must demonstrate that: (1) ACP created the dangerous condition that caused Louis Rodriguez's accident or (2) ACP had actual or constructive notice of the condition and failed to correct the condition within a reasonable period of time.See DeVeau v. United States, 833 F. Supp. 139, 143 (N.D.N.Y. 1993); Pirillo v. Longwood Assocs., Inc., 179 A.D.2d 744, 579 N.Y.S.2d 120, 121 (1992); Trujillo v. Riverbay Corp., 153 A.D.2d 793, 545 N YS.2d 2, 3 (1989). Plaintiffs do not assert that ACP had actual knowledge of the icy patch that caused Louis Rodriguez's fall.

Because this plaintiff was unable to demonstrate either actual or constructive notice to defendants of the condition complained of, the IAS court erred in denying their motions for summary judgment (see, Keum Choi v. Olympia York Water St. Co., 278 A.D.2d 106; Joseph v. Chase Manhattan Bank, 277 A.D.2d 96; Cottingham v. Hammerson Fifth Ave. Inc., 259 A.D.2d 348). Both before the motion court and now on appeal, plaintiffs have invoked a Federal decision from the Northern District of New York (DeVeau v. United States, 833 F. Supp. 139) holding that liability in a lobby slip-and-fall claim could attach to a building owner based upon allegedly negligent placement of matting and warning signs alone. Here the injured plaintiff, supported by an expert who never inspected the site but relied instead on a floor plan of the lobby, claims that a three-inch space between the side of the safety matting and the entrance to the newsstand raised a triable issue under the DeVeau formulation.

As a result, Defendants (or their predecessors) either created the condition or at the very least had constructive notice of it. See Burton v State, 90 AD2d 585, 586 (3d Dept 1982); see also Smith v New York Enter. Am., Inc., 2008 US Dist. LEXIS 55059, *17 (SDNY July 21, 2008); DeVeau v United States, 833 F. Supp. 139, 144 (NDNY Sept. 16, 1993).