| Connolly v United Health Servs., Inc. |
| 2010 NY Slip Op 07662 [77 AD3d 1274] |
| October 28, 2010 |
| Appellate Division, Third Department |
| Maria Connolly et al., Respondents, v United Health Services, Inc.,Appellant. |
—[*1] Edward T. Waples, Binghamton, for respondents.
Mercure, J. Appeal from an order of the Supreme Court (Lebous, J.), entered March 18, 2010in Broome County, which denied defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff Maria Connolly (hereinafter plaintiff) and her husband, derivatively, commencedthis action to recover for injuries she sustained after slipping and falling on ice outside anentrance to defendant's hospital. Following joinder of issue, defendant moved for summaryjudgment, asserting that it did not create or have notice of the icy condition. Supreme Courtdenied defendant's motion, prompting this appeal.
We affirm. A defendant in a slip and fall case has "the threshold burden when seekingsummary judgment of establishing that [it] maintained the premises in a reasonably safecondition and neither created nor had actual or constructive notice of the allegedly dangerouscondition" (Candelario v WatervlietHous. Auth., 46 AD3d 1073, 1074 [2007]; see Amidon v Yankee Trails, Inc., 17 AD3d 835, 836 [2005]).Plaintiffs' claims turn on whether defendant had constructive notice inasmuch as there are noallegations that defendant created or had actual notice of the allegedly dangerous condition. It iswell settled that "[t]o constitute constructive notice, a defect must be visible and apparent and itmust exist for a sufficient length of time prior to the accident to permit defendant's employees to[*2]discover and remedy it" (Gordon v American Museum ofNatural History, 67 NY2d 836, 837 [1986]; see Moriarity v Wallace Dev. Co., LLC, 61 AD3d 1088, 1088-1089[2009]).
Here, defendant presented an affidavit from Rich Keehle, its manager of security services,indicating that the hospital conducted routine inspections of the area in which plaintiff fell at aminimum of several times a day. Keehle averred that the entrance and parking area used byplaintiff were inspected at 5:30 a.m. on the day of the accident, and that no dangerous ordefective conditions were observed. Keehle and an employee of defendant's engineering servicesdepartment further indicated that there were no complaints of icy conditions in the area whereplaintiff fell prior to her accident. Moreover, there is no dispute that the day was cold and clear,temperatures remained below freezing and no precipitation fell between 5:30 a.m., when theentrance was allegedly inspected, and 8:30 a.m., the time of the accident. As Supreme Courtconcluded, this evidence was sufficient to establish prima facie entitlement to summaryjudgment, thereby shifting the burden to plaintiffs to raise a triable issue of fact (see Brown v Haylor, Freyer & Coon,Inc., 60 AD3d 1188, 1189 [2009]; Candelario v Watervliet Hous. Auth., 46AD3d at 1074; Martin v RP Assoc.,37 AD3d 1017, 1018-1019 [2007]; see also Boucher v Watervliet Shores Assoc., 24 AD3d 855,856-857 [2005]; cf. Managault vRensselaer Polytechnic Inst., 62 AD3d 1196, 1198 [2009]; Hagin v Sears, Roebuck & Co., 61AD3d 1264, 1266 [2009]; Amidon v Yankee Trails, Inc., 17 AD3d at 836-837).
In response, plaintiffs submitted photographs taken five minutes after the accident byDouglas Ayers, one of defendant's security officers who responded to the scene of the accident.The photographs reveal a large patch of ice near the hospital's entrance upon which an employeeof defendant was spreading salt. Plaintiffs also submitted Ayers' deposition testimony indicatingthat, immediately after the accident, he observed a light coating of partially melted ice or frost,approximately 10 feet by 12 feet, underneath an overhang outside the hospital entrance. Ayersstated that the ice on either side of the overhang had been melted by the sun. Moreover, whileAyers indicated that his responsibilities included patrolling the exterior of defendant's hospital toinspect the grounds for potential hazards, including icy conditions, he explained that it was not"our normal procedure" to patrol the ramp area where plaintiff fell. Ayers further acknowledgedthat he "never looked that close[ly]" at the ramp because no one had fallen there prior toplaintiff's accident.
Viewing this evidence in the light most favorable to plaintiffs, we conclude that they raised atriable issue of fact regarding constructive notice of the dangerous condition that caused theaccident. Accordingly, Supreme Court properly denied defendant's motion for summaryjudgment dismissing the complaint (see Managault v Rensselaer Polytechnic Inst., 62AD3d at 1198; Moriarity v Wallace Dev. Co., LLC, 61 AD3d at 1089; Brown vHaylor, Freyer & Coon, Inc., 60 AD3d at 1190; Candelario v Watervliet Hous. Auth.,46 AD3d at 1074-1075).
Cardona, P.J., Spain, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed, withcosts. [Prior Case History: 27 Misc 3d 1205(A), 2010 NY Slip Op 50565(U).]