| Walters v Costco Wholesale Corp. |
| 2008 NY Slip Op 04510 [51 AD3d 785] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Dellory Walters et al., Respondents, v Costco WholesaleCorporation, Appellant, et al., Defendant. |
—[*1] Corpina, Piergrossi, Overzat & Klar, LLP (Pollack, Pollack, Isaac & DeCicco, New York,N.Y. [Brian J. Isaac and Diane K. Toner], of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant Costco WholesaleCorporation appeals, as limited by its brief, from so much of an order of the Supreme Court,Westchester County (Donovan, J.), dated November 28, 2007, as denied its motion for summaryjudgment dismissing the complaint insofar as it is asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff Dellory Walters (hereinafter the plaintiff) allegedly was injured when sheslipped and fell on a patch of "black ice" near the handicapped parking area of the parking lotlocated on the appellant's premises. The plaintiff fell at approximately 10:00 a.m. when the storewas opening. She testified at her deposition that she did not see the ice before she fell. Uponentering the appellant's store she notified the appellant's safety manager about the incident. Thesafety manager testified at her deposition that she and another employee went to investigatethereafter, and she saw the ice patch in issue.
In support of its motion for summary judgment dismissing the complaint insofar as assertedagainst it, the appellant established its prima facie entitlement to judgment as a matter of law bydemonstrating that it neither created the subject icy condition nor had actual or constructivenotice of it (see Raju v Cortlandt TownCtr., 38 AD3d 874 [2007]). In opposition, however, the plaintiffs [*2]submitted evidence that there was precipitation and intermittentlyfreezing temperatures on the days prior to the plaintiff's fall, deposition testimony of theappellant's manager that the icy condition was visible immediately after the plaintiff's fall, and anincident report stating that another person had fallen on ice in the same general vicinity 45minutes earlier. This evidence raised a triable issue of fact as to whether the appellant hadconstructive notice of the existence of the hazardous condition for a sufficient length of time tohave discovered and remedied it (seeSantoliquido v Roman Catholic Church of Holy Name of Jesus, 37 AD3d 815 [2007];Olivieri v GM Realty Co., LLC, 37AD3d 569 [2007]; Kyung Sook Park v Caesar Chemists, 245 AD2d 425 [1997]).Spolzino, J.P., Balkin, Dickerson and Belen, JJ., concur.