| Medina v La Fiura Dev. Corp. |
| 2010 NY Slip Op 00230 [69 AD3d 686] |
| January 12, 2010 |
| Appellate Division, Second Department |
| Daysi Medina, Appellant, v La Fiura Development Corp.et al., Respondents. |
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In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Satterfield, J.), dated September 8, 2008, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
The plaintiff alleges that on the evening of March 12, 2005, she slipped and fell on ice onpremises owned by the defendant La Fiura Development Corp., and maintained by thedefendants John Cervoni and Santa Fresca. In moving for summary judgment, the defendantscontended that they lacked actual or constructive notice of the allegedly dangerous condition.The Supreme Court granted the motion and the plaintiff appeals. We reverse.
A property owner will be held liable for a slip and fall involving snow and ice on its propertyonly when it created the dangerous condition that caused the accident, which is not alleged here,or had actual or constructive notice thereof (see Buroker v Country View Estate Condominium Assn., Inc., 54AD3d 795 [2008]; Scott v Redl,43 AD3d 1031 [2007]; Gil vManufacturers Hanover Trust Co., 39 AD3d 703 [2007]). To provide constructivenotice, a defect must be visible and apparent and it must exist for a sufficient length of time priorto the accident to permit the defendants to discover and remedy it (see Gordon v AmericanMuseum of Natural History, 67 NY2d 836, 837 [1986]; Scott v Redl, 43 AD3d 1031 [2007]). Here, the defendants failed toestablish, prima facie, that they lacked actual or constructive notice of the icy condition thatallegedly caused the plaintiff to slip and fall (see Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]; cf. Goldman v Waldbaum, Inc., 248 AD2d 436 [1998]). In support oftheir motion, the defendants submitted, inter alia, an affidavit of the defendant Fresca, whoaverred that he was responsible for shoveling snow from the walkways on the premises. In hisaffidavit, Fresca essentially conceded that he had no specific recollection of the last snow beforethe plaintiff's accident, which fell four days before the accident, and, thus, could not confirmwhether and in what manner he had removed such snow. Since the defendants did not meet theirprima facie burden, it [*2]is not necessary to consider thesufficiency of the plaintiff's opposition papers (see Tchjevskaia v Chase, 15 AD3d 389 [2005]). Accordingly, theSupreme Court should have denied the defendants' motion for summary judgment dismissing thecomplaint. Skelos, J.P., Eng, Belen and Austin, JJ., concur.