Sonya Nielsen v Metro-North Commuter Railroad Company

Nielsen v Metro-North Commuter R. R. Co. 2006 NY Slip Op 04818 [30 AD3d 497] Decided on June 13, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 13, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ROBERT W. SCHMIDT, J.P.
GABRIEL M. KRAUSMAN
WILLIAM F. MASTRO
ROBERT J. LUNN, JJ.
2005-02559 DECISION & ORDER

[*1]Sonya Nielsen, appellant,

v

Metro-North Commuter Railroad Company, respondent. (Index No. 5422/03)




Bruce A. Petito, Poughkeepsie, N.Y., for appellant.
Landman Corsi Ballaine & Ford, P.C., New York, N.Y. (James
M. Woolsey III and Melissa Melzer of
counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Brands, J.), dated March 3, 2005, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

A property owner will be held liable for a slip-and-fall involving snow and ice on its property only when it created the dangerous condition that caused the accident or had actual or constructive notice thereof (see Fahey v Serota, 23 AD3d 335; Zabbia v Westwood LLC, 18 AD3d 542; Cody v DiLorenzo, 304 AD2d 705; Voss v D & C Parking, 299 AD2d 346; see also Simmons v Metropolitan Life Ins. Co., 84 NY2d 972).

In opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to establish that the defendant either created the complained-of condition, or had actual or constructive notice thereof. The plaintiff's contention that the defendant failed to provide proper snow and ice control and removal was speculative and insufficient to raise a triable issue of fact (see Carminati v Roman Catholic Diocese of Rockville Ctr., 6 AD3d 481; Carricato v Jefferson Val. Mall Ltd. Partnership, 299 AD2d 444; see generally Alvarez v Prospect Hosp., 68 NY2d 320).
SCHMIDT, J.P., KRAUSMAN, MASTRO and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court