| Torosian v Bigsbee Vil. Homeowners Assn. |
| 2007 NY Slip Op 10455 [46 AD3d 1314] |
| December 27, 2007 |
| Appellate Division, Third Department |
| Brenda Torosian, Respondent, v Bigsbee Village HomeownersAssociation et al., Appellants. |
—[*1] Harris Beach, L.L.P., Albany (Mark J. McCarthy of counsel), for Timothy Trier, Inc. andanother, appellants. Dryer Boyajian, L.L.P., Albany (John B. Casey of counsel), for respondent.
Cardona, P.J. Appeal from an order of the Supreme Court (Giardino, J.), entered April 17,2007 in Schenectady County, which denied defendants' motions for summary judgmentdismissing the complaint.
Plaintiff commenced this action seeking to recover for injuries she allegedly sustained whenshe slipped and fell on black ice. The accident occurred around 9:45 p.m. on February 28, 2004in the parking area of a condominium complex owned by defendant Bigsbee VillageHomeowners Association and managed by defendant Diamond Realty Enterprises Corporation.Plaintiff alleged, among other things, that Bigsbee and Diamond, along with defendants TimothyTrier, Inc., doing business as Suburban Turf, and Suburban Turf, LLC (hereinafter collectivelyreferred to as Suburban Turf), which perform snowplowing services for the complex pursuant toa grounds maintenance contract, were negligent in maintaining the property and/or creating anunsafe condition. Bigsbee and Diamond answered jointly and asserted a cross claim againstSuburban Turf. Suburban Turf answered and asserted a cross claim against Bigsbee andDiamond. Following discovery, all defendants moved for summary judgment dismissing thecomplaint. Supreme Court denied the motions finding questions of fact as to whether defendants[*2]had constructive notice of or created a dangerous condition.
For liability to be imposed in a slip and fall accident, the defendant must have created adangerous condition or had actual or constructive knowledge thereof (see Zabbia v Westwood, LLC, 18AD3d 542, 544 [2005]). Actual notice is not at issue herein. With respect to constructivenotice, "it must be shown that the condition was visible and apparent and existed for a sufficientperiod of time prior to the accident to permit defendants to discover it and take corrective action,and a general awareness that snow or ice might accumulate is insufficient" (Martin v RP Assoc., 37 AD3d1017, 1017-1018 [2007] [internal quotation marks and citations omitted]).
Bigsbee and Diamond, in support of their motion, submitted plaintiff's pretrial testimony tothe effect that she did not notice any slippery or icy conditions upon arriving at the complex, butslipped and fell four hours later upon returning to her car. Therefore, they contend that thepurported icy conditions, if any, only developed within that four-hour period. They alsosubmitted a meteorological report establishing that the day in question was clear and sunny withno precipitation and that temperatures were above freezing most of the day. Furthermore, pretrialtestimony established that a Diamond representative routinely inspected the condominiumcomplex and there were no other complaints of ice or slippery conditions at the complex. Thesesubmissions sufficiently established Bigsbee and Diamond's prima facie entitlement to summaryjudgment, thereby shifting the burden to plaintiff to demonstrate a triable issue of fact (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]).
In rebuttal, plaintiff submitted an affidavit from a certified meteorologist who, uponreviewing both the climatological data from the period between February 22 and 29, 2004 (whichwas summarized therein) and the photographs taken the day after plaintiff's fall depicting the iceand banks of snow in the parking area, concluded that, given the melting and freezing process ineffect during that time, the ice upon which plaintiff slipped and fell had been present forapproximately 24 hours prior to the accident. Plaintiff also submitted her uncle's depositiontestimony that ice was present the night of the accident. Viewing the evidence in a light mostfavorable to plaintiff and affording her every favorable inference (see Gadani v Dormitory Auth. of State ofN.Y., 43 AD3d 1218, 1220 [2007]), we find that she raised a triable issue of fact "as towhether the allegedly dangerous condition existed for a sufficient period of time prior to theaccident for [Bigsbee and Diamond] to reasonably have discovered and remedied it" (Dickerson v Troy Hous. Auth., 34AD3d 1003, 1004-1005 [2006]).
Plaintiff's submissions also raised a question of fact as to whether the snowplowing andremoval methods employed by Bigsbee and Diamond, who admitted inspecting and approvingwork performed under the contract with Suburban Turf, created the alleged hazardous conditionof the runoff from the snow banks into the parking area (see Vargas v Central Parking Sys., 35 AD3d 255 [2006]).Consequently, Supreme Court correctly denied the motion by Bigsbee and Diamond.
We also find no error in Supreme Court's denial of Suburban Turf's motion for summaryjudgment. While generally a contractual obligation will not give rise to tort liability in favor of athird party, as is relevant here, where a contracting party "negligently creates or exacerbates adangerous condition [it] may be liable for any resulting injury" (Espinal v Melville SnowContrs., 98 NY2d 136, 142 [2002]). Here, based upon the photographs of the area whereplaintiff fell and the meteorological affidavit submitted by plaintiff, a question of fact exists as towhether [*3]Suburban Turf "launched a force or instrument ofharm" by piling the snow in the parking spaces next to the area where plaintiff fell which,thereafter, melted and refroze into the black ice at issue (Moch Co. v Rensselaer WaterCo., 247 NY 160, 168 [1928]; see Espinal v Melville Snow Contrs., 98 NY2d at142).
Crew III, Mugglin, Rose and Kane, JJ., concur. Ordered that the order is affirmed, with costs.