| Brown v Haylor, Freyer & Coon, Inc. |
| 2009 NY Slip Op 01756 [60 AD3d 1188] |
| March 12, 2009 |
| Appellate Division, Third Department |
| Phoebe Brown, Respondent, v Haylor, Freyer & Coon, Inc., et al.,Appellants. |
—[*1] Finkelstein & Partners, L.L.P., Newburgh (George A. Kohl II of counsel), forrespondent.
Peters, J.P. Appeal from an order of the Supreme Court (Garry, J.), entered July 15, 2008 inTompkins County, which denied defendants' motion for summary judgment dismissing thecomplaint.
Plaintiff commenced this action for personal injuries she allegedly sustained when sheslipped and fell on ice while walking towards a bus stop in the City of Ithaca, Tompkins County.The incident occurred at approximately 6:30 a.m. on December 16, 2003 on a sidewalk in frontof property owned by defendant HFC Building Associates, LLC, leased by defendant Haylor,Freyer & Coon, Inc. and managed by defendant Dryden Apartment Company. Plaintiff alleged,among other things, that defendants created the dangerous condition and/or had notice of the iceon the sidewalk and failed to remedy the situation. Following discovery, defendants moved forsummary judgment dismissing the complaint. Supreme Court denied the motion, findingquestions of fact as to whether defendants had constructive notice of the dangerous condition.Defendants appeal.
To establish entitlement to summary judgment, defendants were " 'required to establish as amatter of law that they maintained the property in question in a reasonably safe condition andthat they neither created the allegedly dangerous condition existing thereon nor had actual orconstructive notice thereof' " (Mokszkiv Pratt, 13 AD3d 709, 710 [2004], quoting Richardson v [*2]Rotterdam Sq. Mall, 289 AD2d 679, 679 [2001]; see Candelario v Watervliet Hous.Auth., 46 AD3d 1073, 1074 [2007]). In support of their motion, defendants proffered,among other things, the pretrial testimony of Daniel Webb, an employee of Dryden whoseresponsibilities included snow removal of the portion of the sidewalk where plaintiff fell. Webbtestified that he inspected the subject property on a daily basis to determine if snow removal wasnecessary and that he performed snow removal and de-icing salting services at the propertybetween 8:30 a.m. and 9:30 a.m. the day before the accident. Defendants also provided evidencethat no complaints of ice, snow or other dangerous conditions on the sidewalk had been reportedprior to the accident. These submissions were sufficient to establish defendants' prima facieentitlement to summary judgment (seeElsey v Clark Trading Corp., 57 AD3d 1330, 1331 [2008]; Torosian v Bigsbee Vil. HomeownersAssn., 46 AD3d 1314, 1315 [2007]; Dickerson v Troy Hous. Auth., 34 AD3d 1003, 1004 [2006]),thereby shifting the burden to plaintiff to raise an issue of fact requiring a trial (seeCPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
In opposition to the motion, plaintiff sought to raise factual questions concerning defendants'constructive notice of the ice on the sidewalk. In order to demonstrate constructive notice,plaintiff was required to present evidence that "the condition was visible and apparent andexisted for a sufficient period of time prior to the accident to permit defendants to discover it andtake corrective action" (Martin v RPAssoc., 37 AD3d 1017, 1017-1018 [2007] [internal quotation marks and citationsomitted]; see Gordon v American Museum of Natural History, 67 NY2d 836, 837-838[1986]; DiGrazia v Lemmon, 28AD3d 926, 927 [2006], lv denied 7 NY3d 706 [2006]).
Plaintiff testified that she saw the patch of ice immediately after she fell and that it wasapproximately the size of her body. She explained that she did not see the ice patch before shefell because she was looking ahead towards the bus stop, rather than down at the ground (see Saunders v Bryant's Towing, 27AD3d 992, 994-995 [2006]). Plaintiff also produced the affidavit and report of a certifiedmeteorologist, which was based upon his review of climatological data from the period betweenDecember 10 and 16, 2003. The meteorologist averred that a storm that spanned the FingerLakes Region produced 8.5 inches of snow in the Ithaca area in the 24-hour period preceding8:00 a.m. on December 15, that no precipitation fell for 16 hours prior to plaintiff's fall and thatthe temperature did not rise above freezing between December 13 and the time of the accident.Based upon this climatological data, he opined that plaintiff slipped on ice which was the residueof the snow storm that ended the previous day and that the ice had been in place for at least 16hours prior to plaintiff's fall. Viewing the evidence in a light most favorable to plaintiff andaccording her the benefit of every favorable inference which can be drawn (see Habib v Baldini, 51 AD3d1250, 1251 [2008]), we agree with Supreme Court's conclusion that plaintiff raised a triablequestion of fact on the issue of constructive notice (see Torosian v Bigsbee Vil. HomeownersAssn., 46 AD3d at 1315-1316; Dickerson v Troy Hous. Auth., 34 AD3d at1004-1005; Uhlinger v GloversvilleEnlarged School Dist., 19 AD3d 780, 781 [2005]).
Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed, with costs.