CARRICATO v. JEFFERSON VALLEY MALL LIMITED PARTNERSHIP

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

Laura T. CARRICATO, et al., Appellants, v. JEFFERSON VALLEY MALL LIMITED PARTNERSHIP, Respondent (and a third-party action).

Decided: November 18, 2002

FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES and WILLIAM F. MASTRO, JJ. Karen Bosshart, Mount Kisco, NY, for appellants. Calano & Calano, LLP, Eastchester, N.Y. (Edward A. Frey of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (LaCava, J.), entered October 26, 2001, which, inter alia, granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff Laura T. Carricato (hereinafter the plaintiff), was allegedly injured when, upon exiting the defendant's shopping mall and walking toward her parked car, she slipped and fell on a patch of black ice.   The plaintiff testified at her deposition that she looked down before she slipped but the surface looked only wet.   She did not see the ice before she fell.   She described the ice as very thin and without color, and the spot where the ice had formed looked just like the asphalt underneath it.

The Supreme Court properly concluded that the defendant met its burden on its motion for summary judgment by showing that it did not create the allegedly dangerous condition which caused the plaintiff's fall, and did not have actual or constructive notice of such condition (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-838, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Gustavsson v. County of Westchester, 264 A.D.2d 408, 693 N.Y.S.2d 241).   The plaintiffs' contention that the defendant created the condition by negligent snow removal was speculative, unsupported by evidence (see Tsivitis v. Sivan Assocs., 292 A.D.2d 594, 595, 741 N.Y.S.2d 545;  Davis v. City of New York, 255 A.D.2d 356, 358, 679 N.Y.S.2d 423).   Moreover, there was no proof to support the plaintiffs' claim that the defendant had constructive notice of the ice patch.   The plaintiff's deposition established that the ice patch was not visible and apparent even to her as she stepped down on it (see Smith v. State, 260 A.D.2d 819, 820-821, 688 N.Y.S.2d 774;  Golonka v. Saratoga Teen and Recreation of Saratoga Springs, 249 A.D.2d 854, 855-856, 672 N.Y.S.2d 472;  see generally Tsivitis v. Sivan Assocs., supra;  Gam v. Pomona Professional Condominium, 291 A.D.2d 372, 737 N.Y.S.2d 113).   The defendant's general awareness that water can turn to ice is legally insufficient to constitute constructive notice of the particular condition that caused the plaintiff to fall (see Gordon v. American Museum of Natural History, supra at 838, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Smith v. Funnel Equities, 282 A.D.2d 445, 446, 723 N.Y.S.2d 194;  Smith v. Smith, 289 A.D.2d 919, 921, 735 N.Y.S.2d 630).   There being no triable issues of fact raised, the Supreme Court properly granted the defendant's motion for summary judgment.

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