The defendants, Sid Farber, LLC, and Sid Farber Enterprises, LLC, (hereinafter collectively referred to as "Sid Farber"), move for an order granting the moving defendants summary judgment dismissing the complaint and all cross-claims as and against the moving defendants on the grounds that the moving defendants are not liable for the personal injuries sustained by the plaintiff. 50% Off Cards cross-moves for the same relief. The plaintiff submits opposition. The defendants submit reply affirmations.

Plaintiff initiated this action to recover for personal injuries sustained when she, a pedestrian, was struck down by a motor vehicle owned and operated by non-party, Frederick Lamb, on February 23, 2005. Plaintiff testified that she exited the stationary store known as 50% Off Cards and was standing in front of the store when she was struck by the aforementioned motor vehicle.

50% Off Cards is one of several stores located in a strip mall, attached to each other in an L-shape within the parking lot located at or near 3-10 Northwest Drive, Farmingdale, State of New York. The plaintiff alleges that the defendants failed to have "the necessary erect barriers in place which would have prevented Frederick E. Lamb's vehicle, from striking plaintiff". Plaintiff claims that the defendants created and allowed the storefront premises to be maintained in a defective condition despite prior knowledge of three prior separate occasions whereby motor vehicles have [*2]crashed through storefront premises at the subject strip mall.

The defendant, Sid Farber, submits the affidavit of Arthur Phineas Weber, P.E., a licensed Professional Engineer who inspected the subject premises. Mr. Weber opines that the access sidewalk and parking lot spaces perpendicularly abutting thereto at the subject shopping mall storefront comply both in design and construction with the applicable requirements of the pertinent portions of the New York State Building Construction Code and with the Architectural Standards at the American Institute of Architects. Mr. Weber further states that the subject access sidewalk and parking lot spaces are not in any need of any alteration or repair and provide a reasonably functional and structurally safe pedestrian and shopper facility.

To impose liability upon the defendant, there must be evidence tending to show the existence of a dangerous or defective condition, and that the defendant either created the condition or had the actual knowledge of it. (Gordon v. American Museum of Natural History, 501 NYS2d 646 {67 NY2d 836} ). In order for a plaintiff to make a prima facie case, the plaintiff must establish the existence of a dangerous and defective condition. (Pilato v. Diamond, 209 AD2d 393). Once a dangerous or defective condition has been alleged, plaintiff must prove that the defendant either created or had

actual or constructive notice of the allegedly dangerous condition that caused their injuries. (Golding v. Powell & Dempsee, Inc., 247 AD2d 510; Schafran v. Peconic Mgt. Corp., 293 AD2d 518).

To constitute notice, a defect must be visible and apparent and must exist for a sufficient period of time prior to plaintiff's accident to permit the defendant to discover it and remedy same. (Rabadi v. Atlantic & Pacific Tea Co., Inc., 268 AD2d 418). Once the movant for summary judgment has met his or her burden, it is incumbent upon the party opposing said motion to produce evidentiary proof in admissible form sufficient to establish material issue of fact which warrant a trial. (Alvarez v. Prospect Hosp., 508 NYS2d 923 {68 NY2d 320} ). Though summary judgment is a drastic remedy, summary judgment is available in a negligent action where there is no genuine issue to be resolved at trial. (Id). A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist. (LoBreglio v. Marks, 105 AD2d 621, aff'd, 65 NY2d 620; Friends of Animals, Inc. v. Associated For Manufacturers, Inc., 46 NY2d 1065). A shadowy semblance of an issue is not enough to defeat a motion for summary judgment. (LoBreglio v. Marks, 105 AD2d 621).

In the instant case, the defendant, Sid Farber, has satisfied its burden on its motion for summary judgment by submitting evidence which demonstrates that the defendant neither created the allegedly dangerous condition, nor had actual or constructive knowledge of it. The affidavit of Mr. Weber, an engineer, demonstrates that defendant did not create the alleged dangerous condition which the plaintiff claims caused her to fall. In fact, Mr. Weber provides that the purported condition, failure to erect necessary barriers, did not exist. Mr. Weber opines that the subject parking lot was in compliance with the applicable building codes and was maintained in a reasonably [*3]functional and structurally safe manner.

The defendant, 50% Off Cards, has also demonstrated that it is entitled to summary judgment. 50% Off Cards did not own or rent the parking lot or the sidewalk in front of its store, and therefore had no duty to erect barriers between the parking lot and sidewalk in front of its store at the strip mall. It is well settled that liability for defects on property is predicated on ownership, occupancy, control or special use of the property. (Usman v. Alexander's Rego Shopping Center, Inc., 11 AD3d 450; Dugue v. 1818 Newkirk Management Corp., 301 AD2d 561; Soto v. City of New

York, 244 AD2d 544; Monnitt v. City of New York, 230 AD2d 719). Absent one of these elements there is no basis to impose liability for property defects. (Usman v. Alexander's Rego Shopping Center, Inc., supra ; Dugue v. 1818 Newkirk Management Corp., supra ; Soto v. City of New York, supra ;, supra , Minnott v. City of New York, supra .)

As the defendants have met their burden, the plaintiff must raise a triable issue of fact to defeat the defendants' motion. Here, the plaintiff has failed to raise a triable issue of fact. Plaintiff has not submitted any admissible evidence to raise an issue of fact as to whether the design of the sidewalk, parking lot, or strip mall, is a dangerous condition, that it is improperly designed or constructed, that it required necessary barriers, or was otherwise defective. The plaintiff has not submitted an expert's affidavit to refute the defendants' evidence. The plaintiff's opposition papers are insufficient in that they contain unsubstantiated and speculative assertions that merely theorize that a dangerous condition was created. (Goldman v. Waldbaum, 297 AD2d 277). Viewing the evidence in the light most favorable to the plaintiff, and assuming that the circumstantial facts alleged are true, there is no evidence on the record of any statistical support, foundational facts, or any indication that the defendants violated industry standards or otherwise constitute a deviation from accepted practice. (Browne v. Big V Supermarkets, 188 AD2d 798). "Conclusions based upon surmise, conjecture, speculation or assertions are without probative value." (Maiorano v. Price Choper Operating Co., 221 AD2d 698.) Notably, while the plaintiff's injuries are unfortunate, plaintiff's constant reference to such injuries in the opposition papers is inappropriate as such reference is not relevant to the defendants' motion on liability.

Plaintiff has also failed to raise an issue of fact as to whether the defendant had actual or constructive notice of the allegedly defective condition. Plaintiff annexes copies of two police reports, one dated August 3, 2000 and another July 6, 1999, whereby two motor vehicles crashed into the storefronts located at the subject strip mall. The reports provide that on August 3, 2000, the driver stated that he must have hit the gas instead of the brake, and that on July 6, 1999 the driver stated that he must have hit the gas instead of the brake. These "prior incidents" were separate unrelated occurrences. Moreover, the plaintiff's reliance on the aforementioned prior incidents is misplaced as the prior incidents are no indication that the defendants violated industry standards or otherwise constitute a deviation from accepted practice. As there is insufficient evidence of notice to defendant, as well as to creation of the condition, plaintiff has failed to defeat the defendants' entitlement to summary judgment. [*4]

The defendants' motions for summary judgment are granted and therefore, the plaintiff's action is dismissed.

E N T E R :

________________________________

J.S.C.

Dated: August 16, 2007

cc: Grundfast & Grundfast, Esqs.

Law Offices of John P. Humphreys

O'Connor, O'Connor, Hintz & Deveney, LLP