Khalil v. Fernandez

2016 NY Slip Op 8351, 145 A.D.3d 765, 41 N.Y.S.3d 915

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 2016
• Docket: 2015-01089
• 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.), entered December 9, 2014, 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 “dark gray” ice on the sidewalk abutting premises owned by the defendant. According to the plaintiff, he observed the ice prior to his fall, but he did not realize that it was ice until he stepped on it because the ice was the same color as the sidewalk cement. The plaintiff commenced this action against the defendant to recover damages for personal injuries allegedly resulting from the fall.

The Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. The defend ant established, prima facie, that he did not create the alleged icy condition or have actual or constructive notice of it (see Cuillo v Fairfield Prop. Servs.', L.P., 112 AD3d 777, 778 [2013]; Gershfeld v Marine Park Funeral Home, Inc., 62 AD3d 833, 834 [2009]; Fung v Japan Airlines Co., Ltd., 51 AD3d 861, 862 [2008]; Ronconi v Denzel Assoc., 20 AD3d 559, 560 [2005]; Murphy v 136 N. Blvd. Assoc., 304 AD2d 540 [2003]). In opposition, the plaintiff failed to raise a triable issue of fact. Dillon, J.P., Dickerson, Maltese and Duffy, JJ., concur.