Evangelista v. Church of St. Patrick

103 A.D.3d 571, 960 N.Y.S.2d 97

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 2013
• Status: Published

Opinion

Order, Supreme Court, New York County (Paul Wooten, J.), entered January 18, 2012, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established entitlement to judgment as a matter of law in this action where plaintiff was allegedly injured when she slipped and fell on a patch of ice on the sidewalk outside defendants’ premises. Defendants submitted, inter alia, the testimony of their maintenance supervisor that he inspected the subject sidewalk approximately 50 minutes prior to plaintiffs fall and saw no ice to remove or to apply salt to (see Roman v Met-Paca II Assoc., L.P., 85 AD3d 509 [1st Dept 2011]).

In opposition, plaintiff failed to raise a triable issue of fact. Although plaintiff contradicts the testimony of the maintenance supervisor by stating she saw and slipped on ice, there is no evidence that defendants either created the condition through the negligent removal of snow and ice prior to the accident, or that the ice existed for a sufficient period of time prior to the accident for defendants to discover and remedy the condition (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; compare Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 421 [1st Dept 2011]).

We have considered plaintiffs remaining arguments and find them unavailing. Concur—Friedman, J.P., Saxe, Moskowitz, DeGrasse and Roman, JJ. [Prior Case History: 2012 NY Slip Op 3011(U).]