| Brinson v Geneva Hous. Auth. |
| 2007 NY Slip Op 08650 [45 AD3d 1397] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| Rosa Brinson, Appellant, v Geneva Housing Authority,Respondent. |
—[*1] Rehfuss, Liguori & Associates, P.C., Albany (John W. Liguori of counsel), fordefendant-respondent.
Appeal from an amended order of the Supreme Court, Ontario County (Craig J. Doran, A.J.),entered January 19, 2007 in a personal injury action. The amended order granted defendant'smotion for summary judgment dismissing the complaint.
It is hereby ordered that the amended order so appealed from be and the same hereby isunanimously modified on the law by denying the motion in part and reinstating the complaintinsofar as the complaint, as amplified by the bill of particulars, alleges that defendant hadconstructive notice of the icy condition and as modified the amended order is affirmed withoutcosts.
Memorandum: Plaintiff commenced this negligence action seeking damages for injuries shesustained when she slipped and fell in the parking lot of an apartment complex owned bydefendant. Supreme Court erred in granting that part of defendant's motion for summaryjudgment dismissing the complaint insofar as the complaint, as amplified by the bill ofparticulars, alleges that defendant had constructive notice of the icy condition on which plaintifffell, and we therefore modify the amended order accordingly. Indeed, defendant's submissions insupport of the motion raise triable issues of fact whether there was a storm in progress at the timeof plaintiff's fall (see Cappola vMichael's Banquet Facility, 8 AD3d 1100 [2004]) and whether the ice formed so closein time to the accident that defendant could not reasonably have been expected to notice andremedy the condition after cessation of the storm (see Kimpland v Camillus Mall Assoc., L.P., 37 AD3d 1128 [2007];Santerre v Golub Corp., 11 AD3d945 [2004]; Duman v City of Buffalo, 269 AD2d 848 [2000]; see also Williamsv Scruggs Community Health Care Ctr., 255 AD2d 982 [1998]). Present—Scudder,P.J., Hurlbutt, Smith, Fahey and Pine, JJ.