Plaintiff, 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 stationery store known as 50% Off Cards and was standing in front of the store when she was struck by the 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, New York. The plaintiff alleges that the defendants failed to have the necessary erect barriers in place which would have prevented Frederick E. Lambs vehicle from striking plaintiff. Plaintiff claims that the defendants created and allowed the storefront premises to be maintained in a defective condition despite knowledge of three prior separate occasions where motor vehicles have crashed through storefront premises at the strip mall.

Defendant Sid Farber submitted the affidavit of Arthur Phineas Weber, P.E., a licensed professional engineer who inspected the subject premises. Weber opined 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. Weber further stated 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.

The court held, 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.

To constitute notice, a defect must be visible and apparent, and must exist for a sufficient period of time prior to plaintiffs accident to permit the defendant to discover it and remedy same. 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.

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....

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. Absent one of these elements there is no basis to impose liability for property defects.

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 experts affidavit to refute the defendants evidence. The plaintiffs opposition papers are insufficient in that they contain unsubstantiated and speculative assertions that merely theorize that a dangerous condition was created.

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.

While the plaintiffs injuries are unfortunate, plaintiffs 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 plaintiffs 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.

Bonello v. 50% Off Cards et al., 2007 NY Slip Op 51799(U), Supreme Court, Nassau County, Feinman, J.