Sites v. Van Dam ( 2001 )

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Orange County (Berry, J.), dated May 26, 2000, 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 allegedly slipped and fell on ice that had formed in the joint of two concrete sidewalk slabs that were separated by a height differential. In support of their motion for summary judgment dismissing the complaint, the defendants met their initial burden of showing that they neither created the allegedly dangerous condition nor had actual or constructive notice of it. In opposition, the plaintiffs failed to establish the existence of a triable issue of fact. Although a question of fact was raised as to whether the defendants had notice that one of the concrete slabs had become tilted, there was no evidence that they had notice that ice could form on the resulting joint and create a slipping hazard. In addition, the plaintiffs’ evidence was too speculative to establish that the defect was in existence for a sufficient length of time before the accident to permit the defendants to discover and remedy it. Therefore, the defendants were entitled to summary judgment dismissing the complaint (see, Gordon v American Museum of Natural History, 67 NY2d 836). O’Brien, J. P., Friedmann, Goldstein and Smith, JJ., concur.