| Persaud v S & K Green Groceries, Inc. |
| 2010 NY Slip Op 03094 [72 AD3d 778] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Shanmattee L. Persaud, Respondent, v S and K GreenGroceries, Inc., et al., Appellants. |
—[*1] Albert Zafonte, Jr., Uniondale, N.Y. (Richard Paul Stone of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from so much ofan order of the Supreme Court, Queens County (Markey, J.), entered September 18, 2009, asdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
On the afternoon of March 17, 2007, the plaintiff was selecting produce from an outdoorstand owned and operated by the defendants as part of their fruit and produce store. The plaintiffallegedly was injured when a large section of ice, which had allegedly formed atop the awning ofthe defendants' store, came loose, fell, and struck her on the head. It was not disputed that therehad been snow and icy weather conditions the night before the accident. Moreover, there wasdeposition testimony from the plaintiff, and an affidavit from an eyewitness, to the effect that theice which struck the plaintiff fell from the awning of the defendants' store.
After certain discovery was conducted, including depositions of the plaintiff and thedefendants, the defendants moved for summary judgment dismissing the complaint. Theycontended that they neither created the alleged dangerous condition, nor had actual orconstructive notice of the alleged condition. Additionally, the defendants argued that there wasno proof that the ice which struck the plaintiff originated from their premises. In support of theirmotion, the defendants offered, inter alia, the deposition testimony of their store manager and anaffidavit of their retained engineer. The store manager testified that the awning was specificallypurchased because its design was one that prevented snow and ice from accumulating on it andfalling onto patrons while they were shopping. In contrast, and in apparent contradiction to thestore manager's testimony, the defendants' retained engineer, in his affidavit, opined that theawning was designed so as to allow snow and ice to accumulate and then melt at a later timewhen the temperature rose above the freezing point. The Supreme Court denied the defendants'motion. We affirm.
The defendants failed to demonstrate their prima facie entitlement to judgment as a matter[*2]of law. The defendants have a duty to maintain their premisesin a reasonably safe condition. On their motion for summary judgment, the defendants had theinitial burden of showing, inter alia, that they did not create the defective condition or haveactual or constructive notice of its existence for a sufficient length of time to discover andremedy it. Here, the defendants failed to show that they lacked actual or constructive notice ofthe alleged defective condition (seeRashid v Clinton Hill Apts. Owners Corp., 70 AD3d 1019 [2010]; Bridges v Wyandanch Community Dev.Corp., 66 AD3d 938 [2009]; cf. Caldwell v Pathmark Stores, Inc., 29 AD3d 847 [2006]).Moreover, the contradictory proof offered by the defendants' store manager and engineer raised atriable issue of fact as to whether the defendants created the allegedly defective condition(see Klepper v Seymour House Corp., 246 NY 85 [1927]; Sajta v Latham FourPartnership, 282 AD2d 969 [2001]; Taylor v Bankers Trust Co., 80 AD2d 483, 488[1981]; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; U.S. Bank, N.A. v Collymore, 68AD3d 752, 754 [2009]; Nandlal vCity of New York, 66 AD3d 653, 654-655 [2009]).
Since the defendants failed to make a prima facie showing of their entitlement to judgmentas a matter of law, the Supreme Court properly denied their motion for summary judgmentdismissing the complaint, and it is unnecessary to consider the adequacy of the plaintiff'sopposition papers (see e.g. Khamis vCG Foods, Inc., 49 AD3d 606 [2008]). Covello, J.P., Florio, Eng and Chambers, JJ.,concur.