Opinion
2001-10595
November 21, 2002.
December 23, 2002.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Hall, J.), dated October 31, 2001, which granted the defendants' motion for summary judgment dismissing the complaint.
Pulvers, Pulvers, Thompson Kutner, LLP, New York, N.Y. (Patrice M. Pulvers and David J. Fischman of counsel), for appellant.
Robert P. Tusa, Yonkers, N.Y. (David Holmes of counsel), for respondents.
Before: SANDRA J. FEUERSTEIN, J.P., NANCY E. SMITH, CORNELIUS J. O'BRIEN, GLORIA GOLDSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The plaintiff seeks to recover damages for personal injuries allegedly sustained when she tripped and fell on an icy step leading to the entrance of the defendants' home.
The defendants made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that they neither created nor had actual or constructive notice of the icy condition (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836). The burden then shifted to the plaintiff to come forward with sufficient evidence to raise a triable issue of fact (see Cellini v. Waldbaum, Inc., 262 A.D.2d 345). The plaintiff speculated that the defendant created the icy condition by negligently shoveling the steps. However, the plaintiff's theory was not supported by any evidence, and therefore, it was insufficient to defeat the defendant's motion (see Gittler v. K.G.H. Realty Corp., 258 A.D.2d 504; Jefferson v. Long Is. Coll. Hosp., 234 A.D.2d 589, citing Kay v. Flying Goose, 203 A.D.2d 332). The record also does not reveal any triable issue of fact as to the required element of notice, either actual or constructive. Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.
FEUERSTEIN, J.P., SMITH, O'BRIEN and GOLDSTEIN, JJ., concur.