WILSON v. PRAZZA (2003)

In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Kings County (F.Rivera, J.), dated June 28, 2002, as denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff Iceline Wilson allegedly sustained injuries when she slipped and fell while descending the front steps of the defendants' home in Brooklyn.   She and her husband commenced this action, alleging, inter alia, that the defendants negligently maintained the premises by permitting the front steps and the sidewalk adjacent to their property to become excessively slippery and icy.   The Supreme Court denied the defendants' motion for summary judgment dismissing the complaint.   We reverse.

 The defendants made a prima facie showing that they did not have actual or constructive notice of the ice on the steps upon which the injured plaintiff allegedly slipped, did not create the condition by salting and removing ice from the steps earlier in the day, and did not make the condition of the sidewalk more hazardous (see Yen Hsia v. City of New York, 295 A.D.2d 565, 744 N.Y.S.2d 887;  Plona v. City of New York, 289 A.D.2d 215, 734 N.Y.S.2d 191;  McKeown v. Stanan Mgt. Corp., 274 A.D.2d 460, 710 N.Y.S.2d 633;   Pepito v. City of New York, 262 A.D.2d 619, 692 N.Y.S.2d 691).   The plaintiffs' assertion in opposition that the defendants negligently performed the ice or snow removal, is nothing more than speculation and conjecture insufficient to defeat the defendants' motion, since the injured plaintiff herself did not notice any ice on the steps or sidewalk when she arrived at the defendants' house earlier in the morning, and the defendants testified that all the ice was cleared from the steps (see Carricato v. Jefferson Val. Mall Ltd. Partnership, 299 A.D.2d 444, 749 N.Y.S.2d 575;  Tsivitis v. Sivan Assoc., 292 A.D.2d 594, 741 N.Y.S.2d 545;  DeVivo v. Sparago, 287 A.D.2d 535, 731 N.Y.S.2d 501).

 The affidavits of the injured plaintiff and the plaintiffs' expert submitted in opposition to the defendants' motion raised for the first time the issue that the accident was also caused by a defect in the height of the bottom step, which allegedly was shorter than the other steps, in violation of the New York City Administrative Code. This is a feigned issue of fact insufficient to defeat the defendants' motion (see Krohn v. Melanson, 298 A.D.2d 510, 748 N.Y.S.2d 658;  Marcelle v. New York City Tr. Auth., 289 A.D.2d 459, 735 N.Y.S.2d 580;  Schmidt v. Barstow Assoc., 276 A.D.2d 784, 715 N.Y.S.2d 706;  Gustavsson v. County of Westchester, 264 A.D.2d 408, 409, 693 N.Y.S.2d 241).