Guite v. Burnison

Appeal from an order of the Supreme Court, Wyoming County (Michael E Griffin, A.J.), entered September 1, 2004. The order granted defendants’ motion for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action to recover damages for injuries she allegedly sustained when her foot became stuck in mud on property owned by defendants George Burnison and Laurie Burnison, causing her to fall. Contrary to plaintiffs contention, Supreme Court properly granted defendants’ motion for summary judgment dismissing the complaint. Defendants met their initial burden on the motion by establishing that they did not create the alleged dangerous condition, nor did they have actual or constructive notice of it (see generally Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Williams v Wal-Mart Stores, Inc., 10 AD3d 653 [2004]), and plaintiff failed to raise a triable issue of fact to defeat the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Williams, 10 AD3d 653 [2004]). We note that plaintiff does not contend on appeal that the court erred in determining that she was not forced to step off the driveway because of the approach of defendants’ tractor, although defendants contend in their respondents’ brief that the court’s determination was proper in that respect. We thus conclude that plaintiff has abandoned any contention with respect to that determination (see generally Ciesinski v Town of Aurora, 202 AD2d 984 [1994]). Present—Scudder, J.P., Kehoe, Smith and Pine, JJ.