Zimmer v. Kimco Realty Corp.

Apr 12, 2004
Versions:6 A.D.3d 528
774 N.Y.S.2d 389

*529In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lally, J.), entered April 18, 2003, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Based on the evidence presented by the defendant in support of its motion, which indicated that a storm was in progress at the time of the plaintiffs accident, the defendant met its burden of establishing that it did not have a reasonably sufficient time to remedy the allegedly dangerous icy condition (see Pelliccio v TCW Realty Fund VIA Holding Co., 291 AD2d 388 [2002]; DeMasi v Radbro Realty, 261 AD2d 354 [1999]).

In opposition, the plaintiff failed to raise a triable issue of fact as to whether she slipped on ice that was present from a previous storm (see Dowden v Long Is. R.R., 305 AD2d 631 [2003]; Pepito v City of New York, 262 AD2d 619, 620 [1999]). Her assertion that the ice patch existed for a sufficiently long time to have provided constructive notice and a sufficient amount of time to remedy the condition can only be based upon speculation (see Sellet v United Artists Theaters, 251 AD2d 488, 489 [1998]; Bertman v Board of Mgrs. of Omni Ct. Condominium I, 233 AD2d 283 [1996]).

Accordingly, the defendant’s motion was properly granted. Goldstein, J.P., H. Miller, Adams and Cozier, JJ., concur.