EISIG v. WEINSTEIN (2001)

In an action to recover damages for personal injuries, the defendant Eli Weinstein appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated August 4, 2000, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed.

 To impose liability on an owner of real property when a plaintiff slips and falls on a patch of ice, a plaintiff must demonstrate either that the owner created the dangerous condition or had actual or constructive notice of its existence (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Marasia v. Noyl Coram, Inc., 260 A.D.2d 607, 688 N.Y.S.2d 671;  Davis v. City of New York, 255 A.D.2d 356, 679 N.Y.S.2d 423;  Sellet v. United Artists Theaters, 251 A.D.2d 488, 674 N.Y.S.2d 426).   In support of his motion for summary judgment dismissing the complaint insofar as asserted against him, the appellant established that he did not have actual or constructive notice of the existence of the ice on which the plaintiff allegedly slipped and fell, and had not created the icy condition.   In opposition, the plaintiff failed to raise a triable issue of fact.   Accordingly, the Supreme Court erred in denying the appellant's motion.