| Moriarity v Wallace Dev. Co., LLC |
| 2009 NY Slip Op 02517 [61 AD3d 1088] |
| April 2, 2009 |
| Appellate Division, Third Department |
| Therese Moriarity, Appellant, v Wallace DevelopmentCompany, LLC, Respondent. |
—[*1] The Cambs Law Firm, L.L.P., Camillus (Peter Cambs of counsel), for respondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Lebous, J.), entered May 2, 2008 inBroome County, which granted defendant's motion for summary judgment dismissing thecomplaint.
At approximately 9:30 a.m. on February 5, 2005, plaintiff allegedly slipped on ice and fellafter exiting her vehicle. The accident occurred in the parking lot of a shopping plaza owned bydefendant in the Town of Chenango, Broome County. She commenced this negligence actionalleging, among other things, that the ice had formed in the parking lot when water from anearby pile of snow had melted and then had refrozen in a depression in the parking lot.Defendant moved for summary judgment alleging that it had no actual or constructiveknowledge of the ice on which plaintiff allegedly slipped. Without rendering a written opinion,Supreme Court granted the motion. Plaintiff appeals.
Defendant had the threshold burden of establishing that it maintained its property in areasonably safe condition and that it did not create, or have actual or constructive notice of, theallegedly dangerous condition (seeCantwell v Rondout Sav. Bank, 55 AD3d 1031, 1031-1032 [2008]; Candelario v Watervliet Hous. Auth.,46 AD3d 1073, 1074 [2007]). Plaintiff does not dispute that defendant met this initialburden thereby shifting to plaintiff the burden of demonstrating a triable issue of fact. Plaintiffsubmitted proof primarily aimed at raising a [*2]factual issueregarding constructive notice. "A claim of constructive notice requires that the condition bevisible and apparent and in existence for a sufficient period of time so as to allow the defendantan opportunity to take corrective action" (Saunders v Bryant's Towing, 27 AD3d 992, 994 [2006]).
Viewing plaintiff's proof in the light most favorable to her (see Habib v Baldini, 51 AD3d1250, 1251 [2008]), we find that she raised a triable issue. The morning of the accident theweather was clear. A photograph taken less than one hour after the accident depicted a wet or icyarea and a nearby pile of snow. Although there was conflicting evidence, plaintiff testified thatthe substance depicted in the photograph was ice and that such ice caused her to slip and fall.She submitted an affidavit from a meteorologist who stated that his review of climatological datarevealed that the last precipitation in the area occurred 10 days before the accident in the form ofsnow on January 26, 2005. Following that storm, there was a total accumulation of snow on theground of 12 inches, but by the date of the accident that amount had diminished to nine inchesreflecting melting. Based upon his review of temperatures during the germane period, he opinedthat the ice upon which plaintiff fell had resulted from the pooling of melting snow that refroze.He stated that the refreezing would have occurred approximately 13 to 15 hours before plaintifffell. A further affidavit from an architect concluded that the slope of the parking lot was suchthat melt from the pile of snow depicted in the photograph would have traveled to a depressionin the parking lot where plaintiff claimed that the ice was located. There was also evidence fromwhich a jury could reasonably conclude that the parking lot had been in this condition, and proneto melt and freeze pooling, for a sufficient period of time prior to the accident to providedefendant notice thereof. Under such circumstances, factual issues sufficient to defeat summaryjudgment exist (see Elsey v ClarkTrading Corp., 57 AD3d 1330, 1331-1332 [2008]; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314,1315-1316 [2007]; Dickerson v TroyHous. Auth., 34 AD3d 1003, 1004-1005 [2006]).
Mercure, J.P., Peters, Kane and Malone, Jr., JJ., concur. Ordered that the order is reversed,on the law, with costs, and motion denied.