Liliana South v K-Mart Corporation

South v K-Mart Corp. 2005 NY Slip Op 10113 [24 AD3d 748] December 27, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

Liliana South et al., Respondents,
v
K-Mart Corporation, Defendant, and Sersons Corporation et al., Appellants. (And a Third-Party Action.)

—[*1]

In an action to recover damages for personal injuries, etc., the defendants Sersons Corporation and Nathan L. Serota appeal from so much of an order of the Supreme Court, Suffolk County (Underwood, J.), entered December 29, 2004, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff Liliana South allegedly was injured when she slipped and fell on a patch of ice in a shopping center parking lot owned and managed, respectively, by the defendants Sersons Corporation and Nathan L. Serota (hereinafter the appellants). To prove a prima facie case of negligence in a case in which a plaintiff slips and falls on snow or ice, the plaintiff must show that the defendant had actual notice of the dangerous condition, or should have had notice of it in the exercise of due care, and had a reasonably sufficient time after the cessation of precipitation, or onset of the temperature fluctuation which caused the hazardous condition, to take corrective action (see Bullard v Pfohl's Tavern, Inc., 11 AD3d 1026 [2004]; Gam v Pomona Professional Condominium, 291 AD2d 372 [2002]; Pepito v City of New York, 262 AD2d 619 [1999]). [*2]

The appellants failed to sustain their burden in the first instance of establishing, prima facie, their entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]) on the issue of constructive notice. This burden cannot be satisfied merely by pointing out gaps in the plaintiffs' case, as the appellants did here (see Mennerich v Esposito, 4 AD3d 399 [2004]; Katz v PRO Form Fitness, 3 AD3d 474 [2004]; Kucera v Waldbaums Supermarkets, 304 AD2d 531, 532 [2003]; Dalton v Educational Testing Serv., 294 AD2d 462, 463 [2002]). Since the appellants failed to satisfy their burden of proof, it is unnecessary to analyze the sufficiency of the plaintiffs' opposition (see Winegrad v New York Univ. Med. Ctr., supra). Adams, J.P., S. Miller, Ritter and Rivera, JJ., concur.