| Taylor v Rochdale Vil., Inc. |
| 2009 NY Slip Op 02350 [60 AD3d 930] |
| March 24, 2009 |
| Appellate Division, Second Department |
| Renee Taylor, Appellant, v Rochdale Village, Inc.,Defendant and Third-Party Plaintiff-Respondent. Malatesta Paladino, Inc., Third-PartyDefendant-Respondent. |
—[*1] Baker Greenspan & Bernstein, Bellmore, N.Y. (Robert L. Bernstein, Jr., of counsel), fordefendant third-party plaintiff-respondent. John P. Humphreys, Melville, N.Y. (Scott W. Driver, Andrea G. Sawyers, and PatriciaSeegers of counsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals (1), as limited byher brief, from so much of an order of the Supreme Court, Queens County (O'Donoghue, J.),entered September 18, 2007, as granted that branch of the defendant's motion which was forsummary judgment dismissing the complaint, and (2), as limited by her brief, from so much ofan order of the same court entered February 13, 2008, as, upon renewal and reargument, adheredto the determination in the order entered September 18, 2007, granting that branch of thedefendant's motion which was for summary judgment dismissing the complaint.
Ordered that the appeal from the order entered September 18, 2007 is dismissed, as thatorder was superseded by the order entered February 13, 2008, made upon renewal andreargument; and it is further,
Ordered that the order entered February 13, 2008 is reversed insofar as appealed from, on thelaw, upon renewal and reargument, so much of the order entered September 18, 2007, as grantedthat branch of the defendant's motion which was for summary judgment dismissing thecomplaint is vacated, [*2]and that branch of the defendant'smotion which was for summary judgment dismissing the complaint is denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff alleges that she was injured on December 28, 2002, at about 8:00 p.m., whenshe slipped and fell on a patch of ice in a parking lot owned by the defendant. After thecommencement of this action, the defendant moved, inter alia, for summary judgment dismissingthe complaint, arguing, among other things, that it lacked actual or constructive notice of theallegedly dangerous condition. The Supreme Court granted that branch of the defendant's motionand, upon renewal and reargument, adhered to its original determination. We reverse the ordermade upon renewal and reargument insofar as appealed from.
"A defendant may be held liable for a slip-and-fall incident involving snow and [or] ice onits property upon a showing that . . . the defendant had actual or constructive noticeof the allegedly dangerous condition" (Raju v Cortlandt Town Ctr., 38 AD3d 874, 874[2007]; see Salvanti v Sunset Indus. Park Assoc., 27 AD3d 546 [2006]). "On a motionfor summary judgment to dismiss the complaint based upon lack of notice, the defendant isrequired to make a prima facie showing affirmatively establishing the absence of notice as amatter of law" (Goldman v Waldbaum, Inc., 248 AD2d 436, 437 [1998]). Here, thedefendant failed to make such a showing.
The evidence demonstrated that there was a significant snowfall three days before theaccident occurred. The plaintiff testified at her deposition that, on the day of the accident, shehad traversed the parking lot at 9:00 a.m., or 11 hours before she fell, and had observed patchesof ice; she further testified that she had traversed the lot again at about 6:30 or 7:00 p.m. thatsame day, and it appeared to be in the same condition as it was when she had been there in themorning. The defendant did not submit any evidence as to when it last inspected the parking lotprior to the accident or as to the condition of the lot on the day of the accident.
Accordingly, viewing the evidence in the light most favorable to the nonmoving party(see Fleming v Graham, 34 AD3d 525, 526 [2006]; Makaj v Metropolitan Transp.Auth., 18 AD3d 625, 626 [2005]), the defendant failed to meet its burden of demonstratingthat the allegedly dangerous condition existed for an insufficient length of time for it to havediscovered and remedied that condition (see Pearson v Parkside Ltd. Liab. Co., 27 AD3d539 [2006]). Therefore, that branch of its motion which was for summary judgment dismissingthe complaint should have been denied (see Alvarez v Prospect Hosp., 68 NY2d 320[1986]; Clarke v Pacie, 50 AD3d 841 [2008]; Raju v Cortlandt Town Ctr., 38AD3d 874 [2007]), regardless of the sufficiency of the plaintiff's opposition papers. Skelos, J.P.,Santucci, Balkin and Eng, JJ., concur.