| Baines v G&D Ventures, Inc. |
| 2009 NY Slip Op 05735 [64 AD3d 528] |
| July 7, 2009 |
| Appellate Division, Second Department |
| Sandra Baines, Appellant, v G&D Ventures, Inc., DoingBusiness as Color Laundromat, Defendant, and 925-939 Nassau Road, LLC,Respondent. |
—[*1] Cascone & Kluepfel, LLP, Garden City, N.Y. (Leonard M. Cascone and Andrew M. Lauri ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Feinman, J.), entered June 18, 2008, which granted themotion of the defendant 925-939 Nassau Road, LLC, for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendant925-939 Nassau Road, LLC, for summary judgment dismissing the complaint insofar as assertedagainst it is denied.
The plaintiff allegedly was injured when she slipped and fell on a chunk of ice on a sidewalkwithin a strip mall owned by the defendant 925-939 Nassau Road, LLC (hereinafter thedefendant). The plaintiff alleged that it snowed sometime during the week prior to the date of theaccident. The plaintiff also alleged that most of the sidewalk was covered with chunks of ice andthat there were only a few spots which were free of ice. After the plaintiff commenced this actionto recover damages for personal injuries, the defendant moved for summary judgment dismissingthe complaint insofar as asserted against it, claiming that it lacked actual or constructive noticeof the hazardous condition which caused the accident. The defendant also claimed that it couldnot be held liable for the plaintiff's injuries since the condition that allegedly caused her to fallwas open and obvious. The Supreme Court granted the defendant's motion on the ground that thedefendant did not have notice of the alleged hazardous condition. We reverse.
A defendant may be held liable for a slip-and-fall incident involving snow and ice on itsproperty upon a showing that, among other things, the defendant had actual or constructivenotice of the allegedly dangerous condition (see Taylor v Rochdale Vil., Inc., 60 AD3d 930 [2009]; Raju v Cortlandt Town Ctr., 38 AD3d874 [2007]). Thus, "[o]n a motion for summary judgment to dismiss the complaint basedupon lack of notice, the defendant is required to make a prima facie showing affirmativelyestablishing the absence of notice as a matter of law" (Goldman v Waldbaum, Inc., 248[*2]AD2d 436, 437 [1998]). This burden cannot be satisfiedmerely by pointing out gaps in the plaintiff's case, as the defendant did here (see Totten v Cumberland Farms, Inc.,57 AD3d 653 [2008]; South vK-Mart Corp., 24 AD3d 748 [2005]). In support of its motion, the defendant submittedthe deposition testimony of its president, who allegedly inspected the premises on an "almost"daily basis. However, the defendant's president failed to provide any testimony as to when he lastinspected the subject sidewalk prior to the accident or what it looked like when he last inspectedit. Further, the mere fact that the icy condition which allegedly caused the plaintiff to fall wasopen and obvious does not preclude a finding of liability, but rather raises an issue of factregarding comparative negligence (seeSewitch v LaFrese, 41 AD3d 695 [2007]; Ettari v 30 Rampasture Owners, Inc., 15 AD3d 611 [2005]).
Accordingly, the defendant failed to meet its initial burden as the movant, and the SupremeCourt should have denied its motion for summary judgment dismissing the complaint insofar asasserted against it. Since the defendant did not meet its initial burden, we need not review thesufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr.,64 NY2d 851 [1985]).
The defendant's remaining contention is without merit. Fisher, J.P., Florio, Covello andDickerson, JJ., concur.