| Lebron v Napa Realty Corp. |
| 2009 NY Slip Op 06150 [65 AD3d 436] |
| August 11, 2009 |
| Appellate Division, First Department |
| Hector Lebron, Respondent, v Napa Realty Corp.,Appellant. |
—[*1] The Breakstone Law Firm, P.C., Bellmore (Jay L.T. Breakstone of counsel), forrespondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or aboutSeptember 15, 2008, which, to the extent appealed from, in this action for personal injuriesallegedly sustained as the result of a slip and fall on a patch of ice on the sidewalk abuttingdefendant's service station, denied defendant's motion for summary judgment dismissing thecomplaint, unanimously affirmed, without costs.
Defendant failed to make a prima facie showing of entitlement to judgment as a matter oflaw. Since it did not offer any evidence to refute plaintiff's contention that a dangerous condition,namely ice, existed on the sidewalk outside the convenience store and gas station operated bydefendant, defendant was required to establish that it did not create the condition or have actualor constructive notice of it (see Moser vBP/CG Ctr. I, LLC, 56 AD3d 323 [2008]). It did not meet that burden. The depositionof its general manager was not probative, because he had no personal knowledge of the conditionof the sidewalk at the time of the accident or in the hours immediately preceding it. Nor did histestimony establish that any of the employees who worked in the convenience store operated bydefendant could not have noticed the ice in time to clear it.
Indeed, the general manager's testimony suggests just the opposite. It established that thestore was open 24 hours a day and that defendant's employees were charged with theresponsibility of keeping the sidewalks clear of snow and ice. Defendant claims that seven hourselapsed between the time that its climatological records show the temperature dropped below 32degrees Fahrenheit and the time of the accident. Indeed, the time which elapsed betweenformation of the ice and the accident may even have been longer. Defendant failed to accuratelyestablish the length of time that the ice existed, because the climatological records it submittedwere not from the Bronx, where the accident occurred (see Duffy-Duncan v Berns & Castro, 45 AD3d 489, 490 [2007];Ralat v New York City Hous. Auth., 265 AD2d 185 [1999]).
Even if the climatological records were accurate, given the facts that defendant always hademployees on site and that those employees' duties included ensuring that the sidewalks weresafe, it can be presumed that seven hours were sufficient for those employees to notice andaddress the dangerous condition before the accident. Since it did not submit evidenceestablishing why its employees were not able to notice and address the condition in that time[*2]period, defendant failed to establish its prima facieentitlement to summary judgment (seeBaptiste v 1626 Meat Corp., 45 AD3d 259 [2007]). Concur—Mazzarelli, J.P.,Sweeny, DeGrasse, Freedman and Abdus-Salaam, JJ.