KRICHEVSKAYA v. Haim Halevy, respondent. (2006)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated July 15, 2005, which granted the motion of the defendant Haim Halevy for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed, with costs.

The plaintiffs commenced this action to recover damages for personal injuries which the plaintiff Larisa Krichevskaya allegedly sustained when she slipped and fell on ice on the sidewalk in front of the defendant Haim Halevy's premises.   Halevy moved for summary judgment dismissing the complaint insofar as asserted against him on the ground that he neither created nor had actual or constructive notice of the icy condition, and the Supreme Court granted his 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, 306, 679 N.Y.S.2d 340).   Moreover, “once the property owner undertakes to remove the snow and ice from the sidewalk, he or she must do so with reasonable care, and liability may result if it is shown that the property owner made the sidewalk more hazardous” (Lopez v. City of New York, 290 A.D.2d 539, 539-540, 736 N.Y.S.2d 628), that is, caused, created, or exacerbated the icy condition (see Jablons v. Peak Health Club, 19 A.D.3d 369, 796 N.Y.S.2d 174).

 Halevy established, prima facie, that he neither created nor had actual or constructive notice of the icy condition that allegedly caused Krichevskaya to slip and fall.   In opposition, the plaintiffs merely speculated that Halevy created the icy condition by negligently shoveling the sidewalk.   Such speculation was insufficient to raise a triable issue of fact to defeat the motion (see Scher v. Kiryas Joel Hous. Dev. Fund Co., 17 A.D.3d 660, 794 N.Y.S.2d 112;  Trabolse v. Rizzo, 275 A.D.2d 320, 712 N.Y.S.2d 401;  Gittler v. K.G.H. Realty Corp., 258 A.D.2d 504, 685 N.Y.S.2d 265;  Goodwin v. Knolls at Stony Brook Homeowners Assn., 251 A.D.2d 451, 674 N.Y.S.2d 411).