ELLIS v. NEW YORK RACING ASSOCIATION

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

Victoria ELLIS, Appellant, v. NEW YORK RACING ASSOCIATION, Respondent.

Decided: December 30, 2002

NANCY E. SMITH, J.P., GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN and LEO F. McGINITY, JJ. Ofshtein & Ross, P.C., Brooklyn, N.Y. (David S. Steigbigel of counsel), for Appellant. Hoey, King, Toker & Epstein, New York, N.Y. (Richard C. Prezioso of counsel), for Respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated January 17, 2002, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

To establish a prima facie case of negligence in a slip and fall action, a plaintiff must demonstrate that the defendant created the dangerous condition, or had actual or constructive notice thereof (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Schafran v. Ocean Surf Apt. Corp., 293 A.D.2d 518, 739 N.Y.S.2d 847).   Here, in opposition to the defendant's prima facie demonstration of entitlement to judgment as a matter of law, the plaintiff failed to raise an issue of fact that the defendant either created or had actual or constructive notice of the alleged dangerous condition which caused her to fall (see Gordon v. American Museum of Natural History, supra).   The mere speculation by the plaintiff in opposition to the motion as to the cause of the dangerous condition is insufficient to defeat a motion for summary judgment (see Ramatowski v. City of New York, 284 A.D.2d 318, 725 N.Y.S.2d 569).   Accordingly, the defendant was entitled to summary judgment dismissing the complaint.

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