| Califano v Dubonnet Hair Stylists |
| 2012 NY Slip Op 05063 [96 AD3d 1290] |
| June 21, 2012 |
| Appellate Division, Third Department |
| Dolores Califano et al., Respondents, v Dubonnet Hair Stylists etal., Appellants. |
—[*1] Finkelstein & Partners, L.L.P., Newburgh (Andrew L. Spitz of counsel), forrespondents.
McCarthy, J. Appeal from an order of the Supreme Court (J. Sise, J.), entered November 3,2011 in Montgomery County, which denied defendants' motion for summary judgmentdismissing the complaint.
In February 2008, plaintiff Dolores Califano (hereinafter plaintiff) slipped and fell, allegedlyon ice, in the parking lot of a beauty salon operated by defendants. To recover for injuriessustained in that fall, plaintiff and her husband, derivatively, commenced this action. Defendantsmoved for summary judgment dismissing the complaint. Supreme Court denied the motion,prompting defendants' appeal.
Supreme Court properly denied defendants' motion for summary judgment. To prevail on themotion, defendants had to establish that they maintained the property in a reasonably safecondition, did not create a dangerous condition and had no actual or constructive notice of anydangerous condition that caused plaintiff's fall (see Carpenter v J. Giardino, LLC, 81 AD3d 1231, 1231 [2011],lv denied 17 NY3d 710 [2011]). Defendants submitted affidavits from three stylists whoworked at the salon, each of whom averred that they did not observe ice in the parking lot whenthey went into the salon that morning. Although none of them saw plaintiff fall, they eachaverred that they went outside after she fell to assist her and saw her on the ground [*2]near a bench next to the salon entrance. They did not see any ice orslippery conditions on the ground where plaintiff was lying. One of the stylists saw salt on theground where plaintiff fell. Defendant Janet Majewski's husband submitted an affidavit averringthat he shoveled and used a snow blower to remove snow from the property that morning, andspread a salt and sand mixture in the parking lot prior to plaintiff's fall. He also attested that hesaw no ice or slippery condition in the parking lot near the entrance door or nearby bench. Allfour affidavits, as well as Majewski's deposition testimony, attested to a lack of notice regardingany prior complaints of icy conditions in the parking lot.
Defendants also submitted plaintiff's deposition testimony. Although plaintiff was confusedin her responses to many questions,[FN*]she stated several times during her testimony that the area where she fell was in front of one oftwo windows in the front of the salon. This area was different than the area identified by thestylists. Plaintiff testified that after she fell, she noticed that the parking lot contained snow andice "all around," there was water on top of the ice and salt was sprinkled in the area where shefell.
Questions of fact exist regarding exactly where plaintiff fell. The stylists' statements aboutthe lack of an icy condition near the entrance and bench do not address the condition of theparking lot in front of the windows where plaintiff testified that she fell. The divergent assertionscreated factual questions concerning the location of the fall and the condition of the parking lot inthe area of the fall (see Harris v FJNProps., LLC, 18 AD3d 1089, 1090 [2005]; compare Mitthauer v T. Moriarty & Son, Inc., 69 AD3d 588, 589[2010]). Although defendants established a lack of actual notice of an icy condition, the recordcontains a factual dispute as to whether an icy condition existed and, if so, whether it existed fora sufficient period of time prior to the accident so that defendants could have corrected it. Asdefendants failed to meet their burden, Supreme Court properly denied their motion for summaryjudgment.
Peters, P.J., Lahtinen, Spain and Kavanagh, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: Plaintiff was diagnosed withAlzheimer's disease prior to her fall.