GITTLER v. REALTY CORPORATION (1999)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Milano, J.), dated March 4, 1998, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced the instant action to recover damages for personal injuries which he allegedly suffered when he slipped and fell on a patch of ice on the defendant's premises.   The defendant moved for summary judgment on the ground that it neither created nor had actual or constructive notice of the icy condition.   The Supreme Court granted the defendant's motion.   We affirm.

 “A party may be held liable for a hazardous condition created on its premises as the result of the accumulation of snow or ice during a storm upon a showing that it had actual or constructive notice of the dangerous condition and that a reasonably sufficient time had lapsed since the cessation of the storm to take protective measures” (Robles v. City of New York, 255 A.D.2d 305, 679 N.Y.S.2d 340;  see, Baumgartner v. Prudential Ins. Co. of America, 251 A.D.2d 358, 674 N.Y.S.2d 84).

 Here, the defendant established prima facie that it neither created nor had actual or constructive notice of the icy condition which allegedly caused the plaintiff to slip and fall, thereby shifting the burden to the plaintiff to raise a triable issue of fact.   The plaintiff speculated that the defendant created the icy condition by negligently shoveling the walkway.   However, the theory was not supported by any evidence, and therefore, it was insufficient to defeat the defendant's motion (see, Davis v. City of New York, 255 A.D.2d 356, 679 N.Y.S.2d 423).

MEMORANDUM BY THE COURT.