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Smith v. Hariri Realty Associates, Inc.

Supreme Court of New York, Second Department

September 18, 2013

Daniel Smith, appellant,
v.
Hariri Realty Associates, Inc., et al., respondents, et al., defendant Index No. 8236/09

Sackstein, Sackstein & Lee, Garden City, N.Y. (Laurence D. Rogers and Leonard Chipkin of counsel), for appellant.

Martyn Toher & Martyn, Mineola, N.Y. (Jeffrey P. Yong of counsel), for respondents.

DANIEL D. ANGIOLILLO, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, JEFFREY A. COHEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated February 29, 2012, which granted the motion of the defendants Hariri Realty Associates, Inc., and Jen-Kev Management, LLC, for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiff alleged that he slipped and fell on a patch of ice in a parking lot of a shopping center owned by the defendant Hariri Realty Associates, Inc. (hereinafter Hariri), and managed by the defendant Jen-Kev Management, LLC (hereinafter Jen-Kev). "[O]wners of real property onto which members of the public are invited have a nondelegable duty to provide the public with reasonably safe premises and a safe means of ingress and egress" (Sarisohn v 341 Commack Rd., Inc., 89 A.D.3d 1007, 1008). A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice thereof (see Gushin v Whispering Hills Condominium I, 96 A.D.3d 721; Littleton v Amberland Owners, Inc., 94 A.D.3d 953, 954; Cantwell v Fox Hill Community Assn., Inc., 87 A.D.3d 1106; Sut v City Cinemas Corp., 71 A.D.3d 759; Medina v La Fiura Dev. Corp., 69 A.D.3d 686).

Hariri and Jen-Kev established their prima facie entitlement to judgment as a matter of law by demonstrating that they neither created nor had actual or constructive notice of the icy condition alleged to have caused the plaintiff's fall. The plaintiff failed to raise a triable issue of fact in opposition (see Gordon v American Museum of Natural History, 67 N.Y.2d 836; Kaplan v DePetro, 51 A.D.3d 730, 731; Fung v Japan Airlines Co., Ltd., 51 A.D.3d 861, 862). The plaintiff's theory that the ice resulted from piled snow that melted and then re-froze was speculative and, thus, insufficient to raise a triable issue of fact (see Spinoccia v Fairfield Bellmore Ave., LLC, 95 A.D.3d 993, 994; Gershfeld v Marine Park Funeral Home, Inc., 62 A.D.3d 833, 834; Fung v Japan Airlines Co., Ltd., 51 A.D.3d at 862; Zabbia v Westwood, LLC, 18 A.D.3d 542, 544).

Accordingly, the Supreme Court properly granted the motion of Hariri and Jen-Kev for summary judgment dismissing the complaint insofar as asserted against them.

ANGIOLILLO, J.P., CHAMBERS, SGROI and COHEN, JJ., concur.


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