| Totten v Cumberland Farms, Inc. |
| 2008 NY Slip Op 09782 [57 AD3d 653] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mRenee Totten et al., Appellants, v Cumberland Farms, Inc.,Respondent. |
—[*1] Napierski, Vandenburgh & Napierski, LLP, Albany, N.Y. (Eugene Daniel Napierski of counsel),for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of theSupreme Court, Dutchess County (Pagones, J.), dated September 21, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion for summaryjudgment dismissing the complaint is denied.
The injured plaintiff allegedly slipped and fell on ice on the parking lot ground of the defendant'spremises as she exited her parked vehicle. The icy condition was about two feet in diameter and oneinch thick. As a result, the injured plaintiff and her husband, derivatively, commenced this action againstthe defendant. The defendant moved for summary judgment, contending that it neither created thealleged icy condition nor had actual or constructive notice of it. The Supreme Court granted the motion.We reverse.
A defendant who moves for summary judgment in a slip-and-fall case has the initial burden ofdemonstrating, prima facie, that it neither created the hazardous condition nor had actual or constructivenotice of its existence for a sufficient length of time to discover and remedy it (see DeFalco v BJ's Wholesale Club, Inc.,38 AD3d 824 [2007]). This burden cannot be satisfied merely by pointing out gaps in theplaintiffs' case, as the defendant does here (see Picart v Brookhaven Country Day School, 37 AD3d 798 [2007]).In support of its motion, the defendant did not submit evidence from [*2]its employees who were at the premises on the day of the accident. Noevidence was elicited as to when the parking lot was last inspected and no information was provided asto the defendant's general policy on inspecting and maintaining the parking lot. Accordingly, thedefendant failed to meet its initial burden as the movant, and the Supreme Court should have denied itsmotion for summary judgment dismissing the complaint (see Soto-Lopez v Board of Mgrs. of Crescent Tower Condominium, 44AD3d 846 [2007]; Cox v HuntingtonQuadrangle No. 1 Co., 35 AD3d 523 [2006]; Lafrancesca v Wal-Mart Stores, Inc., 23 AD3d 351 [2005]). Since thedefendant did not meet its initial burden as the movant, we need not review the sufficiency of theplaintiffs' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851[1985]; Joachim v 1824 Church Ave., Inc.,12 AD3d 409 [2004]). Miller, J.P., Dickerson, Leventhal and Belen, JJ., concur.