DeVITO v. Robert Whitcomb Landscaping & Gardening, Inc., defendant. (2007)

In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated January 31, 2005, as granted the motion of the defendants Harrison House Associates and the Board of Managers of Harrison House for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff Clementina DeVito alleges that she was injured when she slipped and fell on ice in a parking lot owned by the respondents.   It is undisputed that there was an ongoing snowstorm when this incident took place.

 The respondents made a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572) by submitting proof of the storm in progress at the time of the incident (see Small v. Coney Is. Site 4A-1 Houses, Inc., 28 A.D.3d 741, 814 N.Y.S.2d 240;  Dowden v. Long Is. R.R., 305 A.D.2d 631, 759 N.Y.S.2d 544;  Wines v. City of New York, 283 A.D.2d 639, 725 N.Y.S.2d 862).   In opposition, the plaintiffs failed to raise a triable issue of fact.   “[W]here, as here, the allegation is that the icy surface was created sometime before the storm, it is [the] plaintiff's burden to establish ‘that the precipitation from the storm in progress was not the cause of the incident’ ” (Parker v. Rust Plant Serv., Inc., 9 A.D.3d 671, 672-673, 780 N.Y.S.2d 230, quoting Campagnano v. Highgate Manor of Rensselaer, 299 A.D.2d 714, 715, 749 N.Y.S.2d 595).   Here the injured plaintiff's allegations that the ice which allegedly caused her accident had been present for “a day or two,” or that it was “from another time,” were insufficient to raise a triable issue of fact as to whether she fell on “old” ice (see Small v. Coney Is. Site 4A-1 Houses, Inc., supra at 742, 814 N.Y.S.2d 240;  see also Chapman v. City of New York, 268 A.D.2d 498, 702 N.Y.S.2d 355;  Pohl v. Sternberg, 259 A.D.2d 742, 687 N.Y.S.2d 431).   The plaintiffs also did not submit any evidence to substantiate their claim that the weather conditions prior to the accident date could have resulted in the creation of icy patches in the area where the accident occurred, or any proof that the respondents had notice of such a condition (see Fuks v. New York City Tr. Auth., 243 A.D.2d 678, 663 N.Y.S.2d 639;  see also Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, 622 N.Y.S.2d 496, 646 N.E.2d 798).

Accordingly, the Supreme Court properly granted the respondents' motion for summary judgment dismissing the complaint insofar as asserted against them.