| Williams v Kenyon |
| 2009 NY Slip Op 05064 [63 AD3d 1423] |
| June 18, 2009 |
| Appellate Division, Third Department |
| Robert Williams, Respondent, v Charles J. Kenyon et al.,Appellants. |
—[*1] Conway & Kirby, L.L.P., Latham (Denis R. Hurley, Jr. of counsel), for respondent.
McCarthy, J. Appeal from an order of the Supreme Court (Devine, J.), entered November 25,2008 in Schoharie County, which denied defendants' motion for summary judgment dismissingthe complaint.
While visiting a tenant on defendants' property, plaintiff slipped on ice and injured himself.The accident occurred at the bottom of a slight decline in the driveway where it intersects with asidewalk. At issue is an order of Supreme Court denying a defense motion for summaryjudgment. We affirm.
It is undisputed that defendants did not create or have actual notice of any icy condition onthe property. Rather, the issue distills to whether they had constructive notice of it. To this end,"[a] claim of constructive notice requires that the condition be visible and apparent and inexistence for a sufficient period of time so as to allow [the property owners] an opportunity totake corrective action" (Moriarity vWallace Dev. Co., LLC, 61 AD3d 1088, 1088-1089 [2009] [internal quotation marksand citation omitted]; see Gordon v American Museum of Natural History, 67 NY2d836, 837-838 [1986]). Assuming that defendants met their initial burden by showing that theyhad no constructive notice of the icy condition where plaintiff fell (see Brown v Haylor, Freyer & Coon,Inc., 60 AD3d 1188, 1189 [2009]), viewing the evidence in a light most favorable toplaintiff (see Moriarity v Wallace Dev. Co., LLC, 61 AD3d at 1089), we find that atriable issue of fact has been raised.[*2]
First, although both defendants denied seeing any ice inthe vicinity where plaintiff fell on the day of his accident, plaintiff, his wife and the tenant alltestified at their respective examinations before trial that the ice was observable (although eachgave varying accounts of its size). Moreover, defendant Charles J. Kenyon confirmed that thedriveway proceeds at a slight decline toward the sidewalk and that he had previously observedsnow melt, run down the driveway and then refreeze in the vicinity where plaintiff fell. Plaintiffalso submitted an affidavit from a meteorologist who stated that his review of climatological datarevealed that the weather conditions were conducive for melting and refreezing processes onMarch 1, 2006 and March 2, 2006 (plaintiff fell on March 4, 2006) and that the subject ice patchhad therefore been present for at least 48 hours (cf. Boucher v Watervliet Shores Assoc., 24 AD3d 855, 857[2005]). Under these circumstances, factual issues sufficient to defeat summary judgment havebeen raised (see Moriarity v Wallace Dev. Co., LLC, 61 AD3d at 1089; Brown vHaylor, Freyer & Coon, Inc., 60 AD3d at 1190; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314,1315-1316 [2007]; Dickerson v TroyHous. Auth., 34 AD3d 1003, 1004-1005 [2006]).
Cardona, P.J., Mercure, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,with costs.