| Piersielak v Amyell Dev. Corp. |
| 2008 NY Slip Op 10297 [57 AD3d 1422] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| Patricia Piersielak et al., Appellant, v Amyell Development Corporation etal., Respondents. |
—[*1] Osborn, Reed & Burke, LLP, Rochester (Robert T. Digiulio of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.), enteredSeptember 6, 2007 in a personal injury action. The order granted the motion of defendants forsummary judgment and dismissed the amended complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law by denyingthe motion in part and reinstating the amended complaint insofar as the amended complaint, as amplifiedby the bill of particulars, alleges that defendants had constructive notice of the alleged dangerouscondition and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained byPatricia Piersielak (plaintiff) when she slipped and fell in a parking lot owned and operated bydefendants. Plaintiffs asserted in their bill of particulars that defendants had constructive notice of thealleged dangerous condition but that they were unaware "at this time" whether defendants had actualnotice thereof. Defendants thereafter moved for summary judgment dismissing the amended complaint,and Supreme Court granted the motion. We agree with plaintiffs that the court erred in granting themotion insofar as the amended complaint, as amplified by the bill of particulars, alleges that defendantshad constructive notice of the alleged dangerous condition, and we therefore modify the orderaccordingly. We note at the outset that plaintiffs did not allege that defendants created a dangerouscondition, nor did they attempt to refute the evidence submitted by defendants establishing that they didnot have actual notice of the alleged dangerous condition. Thus, the sole issue before us is whetherdefendants established as a matter of law that they lacked constructive notice of the alleged dangerouscondition, and we conclude that they failed to do so.[*2]
Here, defendants failed to establish " 'that the ice formed soclose in time to the accident that [they] could not reasonably have been expected to notice and remedythe condition' " (Conklin v Ulm, 41AD3d 1290, 1291 [2007]). Indeed, although defendants submitted evidence establishing that thearea where plaintiff fell had been salted at approximately 6:30 a.m. and that plaintiff fell between 11:30a.m. and 11:45 a.m., "[t]he salting of the area [in question] approximately [five] hours before plaintiff felldoes not establish that the ice formed so close in time to the accident that defendant[s] could notreasonably have been expected to notice and remedy the condition" (id.). We conclude in anyevent that plaintiffs raised a triable issue of fact whether defendants had constructive notice of thealleged dangerous condition (see generallyBullard v Pfohl's Tavern, Inc., 11 AD3d 1026 [2004]). Also contrary to the contention ofdefendants, they failed to establish that there was a storm in progress and thus that they are relieved ofliability. The sole evidence submitted by defendants in support of that contention was the affidavit of ameteorologist who did not append thereto any of the weather records upon which he relied. Thus, theaffidavit of the meteorologist "has no probative value" (Daniels v Meyers, 50 AD3d 1613, 1614 [2008]).
We have considered defendants' remaining contention and conclude that it is without merit.Present—Hurlbutt, J.P., Smith, Green, Pine and Gorski, JJ.