         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
145
CA 10-01526
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


JAN MULLANEY, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ROYALTY PROPERTIES, LLC, DEFENDANT-APPELLANT.


RUPP BAASE PFALZGRAF CUNNINGHAM & COPPOLA, LLC, BUFFALO, GANNON,
ROSENFARB & MOSKOWITZ, NEW YORK CITY (LISA L. GOKHULSINGH OF COUNSEL),
FOR DEFENDANT-APPELLANT.

CELLINO & BARNES, P.C., BUFFALO (JEFFREY C. SENDZIAK OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), entered April 19, 2010 in a personal
injury action. The order denied the motion of defendant for summary
judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint is dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when he slipped and fell on black ice in the
parking lot of the apartment complex owned by defendant. We agree
with defendant that Supreme Court erred in denying its motion for
summary judgment dismissing the complaint. Defendant met its initial
burden of establishing as a matter of law that it lacked constructive
notice of the icy condition by submitting plaintiff’s deposition
testimony that the black ice was not visible (see Pugliese v Utica
Natl. Ins. Group, 295 AD2d 992; Wright v Rite-Aid of NY, 249 AD2d
931). In opposition to the motion, plaintiff failed to raise a
triable issue of fact inasmuch as he failed to submit evidence
establishing that the ice was visible and apparent and that a
reasonable inspection by defendant would have led to discovery thereof
(see Quinn v Holiday Health & Fitness Ctrs., N.Y., Inc., 15 AD3d 857;
cf. Pugliese, 295 AD2d 992; Wright, 249 AD2d 931).

     Plaintiff failed to allege that defendant created the icy
condition, and thus he is not entitled to rely upon that theory to
defeat the motion (see Marchetti v East Rochester Cent. School Dist.,
26 AD3d 881), and he has abandoned any issue with respect to actual
notice by failing to raise any such issue on appeal (see Ciesinski v
Town of Aurora, 202 AD2d 984). In view of our determination, we need
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                                                         CA 10-01526

not address defendant’s remaining contention.




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
