SOUTH v. (and a third-party action).

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Supreme Court, Appellate Division, Second Department, New York.

Liliana SOUTH, et al., respondents, v. K-MART CORPORATION, defendant, Sersons Corporation, et al., appellants (and a third-party action).

Decided: December 27, 2005

THOMAS A. ADAMS, J.P., SONDRA MILLER, DAVID S. RITTER, and REINALDO E. RIVERA, JJ. Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, Smithtown, N.Y. (James V. Derenze of counsel), for appellants. Druckman & Sinel, LLP (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Christopher J. Crawford] of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants Sersons Corporation and Nathan L. Serota appeal from so much of an order of the Supreme Court, Suffolk County (Underwood, J.), entered December 29, 2004, as denied their motion 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 Liliana South allegedly was injured when she slipped and fell on a patch of ice in a shopping center parking lot owned and managed, respectively, by the defendants Sersons Corporation and Nathan L. Serota (hereinafter the appellants).   To prove a prima facie case of negligence in a case in which a plaintiff slips and falls on snow or ice, the plaintiff must show that the defendant had actual notice of the dangerous condition, or should have had notice of it in the exercise of due care, and had a reasonably sufficient time after the cessation of precipitation, or onset of the temperature fluctuation which caused the hazardous condition, to take corrective action (see Bullard v. Pfohl's Tavern, 11 A.D.3d 1026, 784 N.Y.S.2d 265;  Gam v. Pomona Professional Condominium, 291 A.D.2d 372, 737 N.Y.S.2d 113;  Pepito v. City of New York, 262 A.D.2d 619, 692 N.Y.S.2d 691).

 The appellants failed to sustain their burden in the first instance of establishing, prima facie, their entitlement to judgment as a matter of law (see Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642) on the issue of constructive notice.   This burden cannot be satisfied merely by pointing out gaps in the plaintiffs' case, as the appellants did here (see Mennerich v. Esposito, 4 A.D.3d 399, 772 N.Y.S.2d 91;  Katz v. PRO Form Fitness, 3 A.D.3d 474, 769 N.Y.S.2d 903;  Kucera v. Waldbaums Supermarkets, 304 A.D.2d 531, 532, 758 N.Y.S.2d 133;  Dalton v. Educational Testing Serv., 294 A.D.2d 462, 463, 742 N.Y.S.2d 364).   Since the appellants failed to satisfy their burden of proof, it is unnecessary to analyze the sufficiency of the plaintiffs' opposition (see Winegrad v. New York Univ. Med. Center, supra ).

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