Upon the foregoing papers, the respective motions for summary judgment are granted and the complaint is dismissed.^[FN1]

This is an action for personal injuries in which plaintiff Ines Vucetic ("Plaintiff") alleges that on June 21, 2003, she slipped and fell in the Macy 's parking lot on the north side of the Staten Island Mall. It is undisputed that on or about November 5, 2002 , Federated Department Stores, Inc. (Federated") hired E.C. Provini Co., Inc. ("Provini") as the general contractor for the construction of a freestanding Macy's store in the north parking lot of the Staten Island Mall (see Macy's Exhibit "I"). It is also undisputed that on February 12, 2003 , Provini subcontracted with Backhoe Services, Inc. ("Backhoe") to perform all of the "site work", which included repaving the parking lot (see Macys Exhibit "J"). Thereafter, Backhoe subcontracted all of the paving and asphalt work to Intercounty Paving Associates, LLC ("Intercounty"). According to an affidavit submitted by Robert Christian, Job Foreman for Intercounty, all of the paving work in [*2]the Macy's parking lot was completed on June 11, 2003, i.e., ten days prior to the date of plaintiff's accident (see Macy's Exhibit "L").

In support of their motions, each of the movants assert that plaintiff has failed to establish a prima facie case of negligence. In order to prove negligence in a slip-and-fall case, a plaintiff is required to show that defendant created the condition which caused the accident, or had actual or constructive notice of that condition (see Larsen, v. Congregation B'nai Jeshurun of Staten Is., 29 AD3d 643; Cruceta v. Funnel Equities, Inc., 18 AD3d 693). A defendant has constructive notice of a defect when the defect is visible and apparent, and has existed for a sufficient length of time before the accident to allow for its discovery and correction (see Gordon v. American Museum of Natural History, 67 NY2d 836, 837-838).

Here, while plaintiff testified at her deposition that an "oily " condition which felt like "black ice" had caused her to slip (see Plaintiff's EBT, Macy's Exhibit "M" pp 51, 104), she also testified that she did not remember seeing any oily substance on the ground of the parking lot while walking to or from the store (id. at p 104). Notwithstanding this lack of direct evidence of causation, proximate cause may nevertheless be inferred from the facts and circumstances surrounding the injury and the logical inferences to be drawn therefrom (see Hartman v. Mountain Val. Brew Pub, 301 AD2d 570). However, "[m]ere speculation as to the cause of the fall, where there can be many causes, is fatal to a cause of action" (Garvin v. Rosenberg, 204 AD2d 388, 388; cf. Cherry v. Daytop Vil., Inc., 41 AD3d 130). In this case, it is equally likely that the accident was caused by some factor over which these movants had no control, such as a misstep or loss of balance during the rainstorm which was

on-going at the time of plaintiff's injury (see Macy's Exhibit "M" pp 90-91), or oil which had leaked from a passing or parked car during the ten days since paving was completed. Under these circumstances, any determination by the trier of fact as to the cause of plaintiff's accident would constitute pure speculation (see Teplitskaya v. 3096 Owners Corp., 289 AD2d 477, 478).

Finally, assuming arguendo that plaintiff could establish prima facie the cause of her fall, it would still be necessary for her to show that the moving defendants either created the condition or had actual or constructive notice of it and failed to take remedial action of it within a reasonable period of time (see Christopher v. New York City Tr. Auth., 300 AD2d 336). In this case, plaintiff has failed to demonstrate through admissible evidence that any of the moving parties created the condition that allegedly caused her injury, or had actual or constructive notice thereof. In this regard, the hearsay statement of plaintiff's friend to the effect that the parking lot was closed for re-paving on the day prior to her accident is insufficient to raise a triable issue of fact on either causation or notice. Hearsay statements are inadmissible, and plaintiff has failed to provide an acceptable excuse for her inability to procure an affidavit from her purported friend (see Joseph v. Hemlok Realty Corp., 6 AD3d 392). In any event, the fact (if it be so) that the parking lot was still being repaved on the day prior to plaintiff's fall does not lessen the speculative nature of her evidence on causation.

Plaintiffs having failed to rebut movants' prima facie showing of their right to judgment as a matter of law, the complaint as against them must be dismissed (see Duffy v Universal Maintenance Corp., 227 AD2d 238).

The Court has examined plaintiffs' remaining contentions and found them to be without merit.

Accordingly, it is hereby

ORDERED that the motions for summary judgment are granted, and the complaint as well as third-and fourth-party complaints are hereby dismissed; and it is further

ORDERED, that the Clerk shall enter judgment accordingly

ENTER,

S/Philip G. Minardo__

J.S.C. [*3]

DATED: October 19, 2007

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