| Sprague v Profoods Rest. Supply, LLC |
| 2010 NY Slip Op 07676 [77 AD3d 585] |
| October 28, 2010 |
| Appellate Division, First Department |
| Donald Sprague, Respondent, v Profoods Restaurant Supply,LLC, et al., Appellants, et al., Defendant. |
—[*1] Wingate Russotti & Shapiro LLP, New York (David M. Schwarz of counsel), forrespondent.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered May 7, 2010, which,insofar as appealed from as limited by the briefs, denied defendants Profoods Restaurant Supply, LLCand BJ's Wholesale Club, Inc.'s motion for summary judgment dismissing the complaint as to them,unanimously affirmed, without costs.
While the evidence submitted by defendants in this slip-and-fall case was sufficient to establish thatthey neither created the alleged icy hazard nor had actual knowledge of it, the evidence was insufficientto establish as a matter of law that they lacked constructive notice of it (see Lebron v Napa Realty Corp., 65 AD3d436 [2009]; Moser v BP/CG Ctr. I,LLC, 56 AD3d 323 [2008]; Baptiste v 1626 Meat Corp., 45 AD3d 259 [2007]). The motion courtproperly found that defendants' submissions, including plaintiff's deposition and defendants' employee'sdeposition, as well as certified copies of meteorological data, created triable issues of fact as to the sizeof the ice patch, its visibility, and whether defendants had sufficient time to discover the hazard andremedy it (cf. Disla v City of New York,65 AD3d 949 [2009]; Lenti v InitialCleaning Servs., Inc., 52 AD3d 288 [2008]).
We have considered defendants' remaining contentions and find them unavailing.Concur—Tom, J.P., Friedman, Catterson, Renwick and Manzanet-Daniels, JJ.