Opinion
2012-06-20
Shirl MAYO, appellant, v. CEDAR MANOR MUTUAL HOUSING CORPORATION, respondent.
Steven Siegel, P.C., Kew Gardens, N.Y., for appellant. Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein of counsel), for respondent.
Steven Siegel, P.C., Kew Gardens, N.Y., for appellant. Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Sampson, J.), dated March 2, 2011, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it neither created nor had actual or constructive notice of the icy condition alleged to have caused the plaintiff's fall ( see Spinoccia v. Fairfield Bellmore Ave., LLC, 95 A.D.3d 993, 943 N.Y.S.2d 601;Christal v. Ramapo Cirque Homeowners Assoc., 51 A.D.3d 846, 846–847, 857 N.Y.S.2d 729).
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's contentions as to when and how the patch of ice was formed were based on speculation and conjecture ( see Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, 973–974, 622 N.Y.S.2d 496, 646 N.E.2d 798;Simon v. PABR Assoc., LLC, 61 A.D.3d 663, 664, 877 N.Y.S.2d 356;DeVito v. Harrison House Assoc., 41 A.D.3d 420, 421, 837 N.Y.S.2d 726;cf. San Marco v. Village/Town of Mount Kisco, 16 N.Y.3d 111, 115, 919 N.Y.S.2d 459, 944 N.E.2d 1098). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.