RICHARDSON v. CAMPANELLI

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

Theodora RICHARDSON, et al., respondents, v. Len CAMPANELLI, et al., appellants.

Decided: September 30, 2002

FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES and BARRY A. COZIER, JJ. Gallacher, Kushel and Horvat, Riverhead, N.Y. (David M. Reilly of counsel), for appellants. Steven D. Dollinger, Melville, N.Y. (Susan R. Nudelman of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated December 19, 2001, which denied their motion for summary judgment dismissing the complaint.

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

The injured plaintiff, Theodora Richardson, allegedly slipped and fell on the defendants' blacktop driveway apron, the area of the driveway between the sidewalk and the street, as she was leaving the premises.   It was raining and the apron was wet.   The plaintiffs contend that the apron was dangerously smooth and slippery and that the defendants created or increased the dangerous condition by sealcoating the blacktop.   The Supreme Court denied the defendants' motion for summary judgment finding the existence of triable issues of fact.   We disagree.

 To impose liability upon the defendants, there must be evidence tending to show the existence of a dangerous or defective condition and that the defendants either created the condition or had actual or constructive knowledge of it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  King v. New York City Tr. Auth., 266 A.D.2d 354, 698 N.Y.S.2d 328;  Patrick v. Cho's Fruit & Vegetables, 248 A.D.2d 692, 671 N.Y.S.2d 274).   The mere fact that the driveway apron was wet from the rain is insufficient to establish a dangerous condition (see Miller v. Gimbel Bros., 262 N.Y. 107, 186 N.E. 410;  Sadowsky v. 2175 Wantagh Ave. Corp., 281 A.D.2d 407, 721 N.Y.S.2d 665;  King v. New York City Tr. Auth., supra;  Patrick v Cho's Fruit & Vegetables, supra;  Wessels v. Service Mdse., 187 A.D.2d 837, 589 N.Y.S.2d 971;  Bacon v. Altamont Farms, 33 A.D.2d 708, 304 N.Y.S.2d 1017, affd. 27 N.Y.2d 936, 318 N.Y.S.2d 313, 267 N.E.2d 100).

 Moreover, there is no evidence that the apron was improperly constructed or designed (see King v. New York City Tr. Auth., supra) or that it was otherwise defective.   The deposition testimony established that the blacktop was “like new” and that there were no holes or cracks in, or debris on, the surface of the apron.

Accordingly, the defendants' motion for summary judgment dismissing the complaint should have been granted.

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