Cedeno v. Higuita

2017 NY Slip Op 1330, 147 A.D.3d 1013, 46 N.Y.S.3d 916

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 2017
• Docket: 2016-09491
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated July 22, 2016, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff allegedly slipped and fell on a thin, transparent layer of ice covering the stairs outside the residence he was renting from the defendant in Elmhurst, Queens. He commenced this action against the defendant to recover damages for personal injuries allegedly resulting from the fall.

The defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that he did not create the alleged icy condition or have actual or constructive notice of it (see Gershfeld v Marine Park Funeral Home, Inc., 62 AD3d 833 [2009]). The defendant established, inter alia, that he had no actual notice of the icy condition, and that the condition was not present for a sufficient period of time for him to have discovered and remedied it prior to the accident (see Valentin v Shoprite of Chester, 105 AD3d 1036, 1037 [2013]; Zerilli v Western Beef Retail, Inc., 72 AD3d 681, 682 [2010]).

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiffs contention that runoff water dripped from an awning onto the steps and froze during the night is speculative (see Edwards v Mantis, LLC, 106 AD3d 689, 690 [2013]; Abbattista v King’s Grant Master Assn., Inc., 39 AD3d 439, 441 [2007]).

Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint.

Rivera, J.P., Dillon, Chambers and Hinds-Radix, JJ., concur.