| Kropp v Corning, Inc. |
| 2010 NY Slip Op 00448 [69 AD3d 1211] |
| January 21, 2010 |
| Appellate Division, Third Department |
| Donald Kropp et al., Appellants, v Corning, Inc.,Respondent. |
—[*1] Levene, Gouldin & Thompson, L.L.P., Binghamton (John J. Pollock of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (Dowd, J.), entered March 12, 2009 inOtsego County, which granted defendant's motion for summary judgment dismissing thecomplaint.
Plaintiffs seek damages for personal injuries allegedly arising from a slip and fall on ice in aloading bay located at defendant's place of business in the City of Oneonta, Otsego County. Onthe date of his injury in February 2004, plaintiff Donald Kropp (hereinafter plaintiff) wasemployed as a truck driver. He arrived at defendant's business shortly before 5:00 a.m., anddefendant's employees provided his paperwork and directed him to the loading bay. In the courseof attaching the trailer to his tractor, while cranking up the legs of the landing gear, plaintiffslipped on a patch of ice. After slipping, he observed an icy spot on the blacktop surface that helater described as measuring approximately 8 to 10 inches in diameter, with no salt or sand on itssurface. Plaintiff further testified that he had not observed snow or ice in the vicinity or indefendant's parking lot, loading bay, or adjacent areas upon his arrival that morning or prior tothis incident. He recalled no precipitation that morning or on the prior day, though thetemperature was near freezing.
Defendant moved for summary judgment, submitting this testimony, together withmeteorological records for the period, revealing that the temperature on the subject date reacheda high of 33 degrees and a low of four degrees, with one tenth of an inch of snowfall. The onlysnowfall recorded in the previous 48 hours had taken place two days earlier with one tenth of aninch reported on that date. Defendant further submitted evidence regarding an existing contractwith a third party for snow and ice removal from the premises. This contract required plowingwhen there was snowfall of two inches or more. In addition, the testimony of defendant'smaintenance supervisor revealed that defendant's custodians would supplement these efforts byshoveling or spreading "ice melt" upon request or notice of a particular problem. In opposition tothe motion, plaintiffs argued that the testimony of defendant's employee revealed that there wasno program for routine inspection of the loading docks or other areas. Plaintiffs submitted theaffidavit of an expert safety engineer criticizing the lack of such a policy at the subject premises,as such would be a "standard operating procedure" within the industry. Supreme Court granteddefendant's motion, dismissing the complaint. Plaintiffs appeal.
We reverse. Viewing the proof in the light most favorable to plaintiffs (see Moriarity v Wallace Dev. Co.,LLC, 61 AD3d 1088, 1089 [2009]; Candelario v Watervliet Hous. Auth., 46 AD3d 1073, 1074[2007]), we find that defendant did not meet its initial burden of proving its lack of notice of theallegedly dangerous condition. Where, as here, only constructive notice is asserted, a defendantmay meet its burden of affirmatively demonstrating a lack of such notice by offering proof ofregularly recurring maintenance or inspection of the premises (see Braudy v Best Buy Co., Inc., 63AD3d 1092 [2009]; McCombs v Related Mgt. Co., 290 AD2d 681, 681-682 [2002];Van Steenburg v Great Atl. & Pac. Tea Co., 235 AD2d 1001, 1001 [1997]). Defendantdid not do so, nor did it submit any other proof that would demonstrate, as a matter of law, thatthis ice patch was not visible and did not exist for a sufficient length of time to permit defendantto discover and remedy it (see e.g.Managault v Rensselaer Polytechnic Inst., 62 AD3d 1196, 1198 [2009]; La Duke vAlbany Motel Enters., 282 AD2d 974, 975 [2001]). In light of this conclusion, we do notaddress the sufficiency of plaintiffs' proof (see Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853 [1985]).
Cardona, P.J., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the order is reversed, onthe law, with costs, and motion denied.