Trabolse v. Rizzo

275 A.D.2d 320, 712 N.Y.S.2d 401, 2000 N.Y. App. Div. LEXIS 8586

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 7, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Mastro, J.), dated September 9, 1999, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

After the defendants made a prima facie showing of their entitlement to summary judgment, it was incumbent upon the plaintiffs to come forward with evidence showing that the defendants had either created the allegedly dangerous condition or had actual or constructive notice thereof (see, Goodwin v Knolls at Stony Brook Homeowners Assn., 251 AD2d 451). However, in their opposition to the motion, the plaintiffs merely speculated that the defendants created the icy condition by negligently shoveling the driveway where the injured plaintiff fell. Their theory was not supported by any evidentiary proof in admissible form and, therefore, the motion was properly granted (see, Gustavsson v County of Westchester, 264 AD2d 408; Gittler v K.G.H. Realty Corp., 258 AD2d 504; Davis v City of New York, 255 AD2d 356). Ritter, J. P., Sullivan, S. Miller, Luciano and H. Miller, JJ., concur.