Opinion
2013-09-11
Alan MORREALE, appellant, v. William ESPOSITO, respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, N.Y. (Debra A. Adler and Ross Barbour of counsel), for respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, N.Y. (Debra A. Adler and Ross Barbour of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Woodard, J.), dated March 5, 2012, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action after he allegedly slipped and fell on “black ice” on the defendant's property. The plaintiff alleged that water was dripping onto the area where the alleged hazardous condition was located as a result of a defective and unnecessary gutter, which was full of ice. The plaintiff testified at his deposition that it had been drizzling for three to five days prior to his accident, and that it was drizzling at the time of the accident. The defendant moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion.
A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only if it created the dangerous condition or had actual or constructive notice of the condition ( see Spinoccia v. Fairfield Bellmore Ave., LLC, 95 A.D.3d 993, 943 N.Y.S.2d 601;Flores v. BAJ Holding Corp., 94 A.D.3d 945, 942 N.Y.S.2d 202;Cantwell v. Fox Hill Community Assn., Inc., 87 A.D.3d 1106, 930 N.Y.S.2d 459). “Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he [or she] has failed to prove that the negligence of the defendant caused the injury” ( Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 7, 14 N.E.2d 828;see Bernstein v. New York, 69 N.Y.2d 1020, 1021–1022, 517 N.Y.S.2d 908, 511 N.E.2d 52;Stackhouse v. Fairfield Presidential Assoc., LP, 37 A.D.3d 590, 590–591, 830 N.Y.S.2d 247;Reagan v. Hartsdale Tenants Corp., 27 A.D.3d 716, 718, 813 N.Y.S.2d 153).
Here, the defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that he did not create the alleged hazardous condition or have actual or constructive notice of it ( see Spinoccia v. Fairfield Bellmore Ave., LLC, 95 A.D.3d 993, 943 N.Y.S.2d 601;Murphy v. 136 N. Blvd. Assoc., 304 A.D.2d 540, 757 N.Y.S.2d 582;Carricato v. Jefferson Val. Mall Ltd. Partnership, 299 A.D.2d 444, 749 N.Y.S.2d 575). In opposition, the plaintiff failed to raise a triable issue of fact. Given the weather conditions at the time of the accident, it would require impermissible speculation to conclude that the ice on which the plaintiff allegedly slipped was created by water dripping from the gutter on the defendant's property ( see Montas v. JJC Construction Corp., 20 N.Y.3d 1016, 963 N.Y.S.2d 164, 985 N.E.2d 1225;Picerno v. New York City Tr. Auth., 4 A.D.3d 349, 771 N.Y.S.2d 549;Jones v. City of New York, 289 A.D.2d 452, 735 N.Y.S.2d 573). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.