| Alexander v St. Mary's Inst. |
| 2010 NY Slip Op 08684 [78 AD3d 1475] |
| November 24, 2010 |
| Appellate Division, Third Department |
| Susan Alexander et al., Appellants, v St. Mary's Institute,Respondent. |
—[*1] Horigan, Horigan & Lombardo, P.C., Amsterdam (Peter M. Califano of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Catena, J.), entered November 16, 2009in Montgomery County, which granted defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff Susan Alexander (hereinafter plaintiff) fell twice on the partially ice-covered exterior stairs,platform and driveway of a building owned and maintained by defendant. She worked as a teacher'saide for a nonprofit organization located in defendant's building and her duties included bringinggroceries to the building's kitchen. For several years she had used a side door to deliver groceries and,upon arriving at about 8:00 a.m. on a cold February morning, she observed ice on parts of thedriveway, stairs and the platform adjacent to the door. She nevertheless was able to make several tripswith groceries from her car over a narrow ice-free area into the building. However, as she returned toher car after completing the final delivery, she slipped on the platform, fell down the stairs and fell againas she tried to get up on the driveway. Thereafter, she and her husband, derivatively, commenced thisaction. Following discovery, defendant moved for summary judgment. Although Supreme Court foundample evidence of a recurring dangerous condition to raise a factual issue regarding constructive notice,the court concluded that plaintiff's action in walking on the steps that she knew were icy rather thanusing another entrance to the building was the sole proximate cause of the accident. [*2]Defendant's motion was thus granted, and plaintiffs now appeal.
We find merit in the argument that the proof, viewed most favorably to the nonmovants (see Candelario v Watervliet Hous. Auth., 46AD3d 1073, 1074 [2007]), does not establish as a matter of law that plaintiff's conductconstituted the sole proximate cause of the accident. In slip and fall cases allegedly caused by adefective or dangerous condition, a landowner in control of the place where the accident occurred isnot necessarily absolved of potential liability where the condition is readily observable or the injuredperson knew of the condition (see Page vState of New York, 72 AD3d 1456, 1458 [2010]; MacDonald v City ofSchenectady, 308 AD2d 125, 126-127 [2003]). We have previously noted regarding wintertimefalling in a driveway or walkway that "the plaintiff is often aware of the presence of a slippery surfacecaused by snow or ice [and, w]hile perhaps relevant to the issues of notice and comparative negligence,the obviousness of this type of hazard does not ordinarily preclude a finding of liability on the part of theproperty owner" (Stern v Ofori-Okai, 246 AD2d 807, 808 [1998] [citations omitted]).
Here, plaintiff observed ice on the premises, but also explained that, by staying immediatelyadjacent to the building, there was an ice-free section about a foot wide that she could follow along thedriveway, stairs and platform. Although there was a longer available route to the kitchen via anotherentrance and plaintiff also did not utilize salt available at the premises once she successfully entered thebuilding, these facts go to comparative negligence. Her attempt to navigate over a narrow ice-free pathon the shortest and familiar route did not, as a matter of law, constitute "intervening conduct [that] wasextraordinary under the circumstances, not foreseeable in the normal course of events, or independentof or far removed from [defendant's] conduct" (Nash v Fitzgerald, 14 AD3d 850, 851 [2005] [internal quotation marksand citations omitted]).
Defendant's contention that it is nevertheless relieved from any liability under the doctrine ofprimary assumption of the risk is without merit (see Trupia v Lake George Cent. School Dist., 62 AD3d 67, 69 [2009],affd 14 NY3d 392 [2010]). Further, we find unavailing defendant's assertion that the SupremeCourt erred in determining that the proof presented (including the affidavit of plaintiffs' expert detailingevidence of an apparent longstanding problem with ice and the absence of a gutter to channel the waterfrom the walkway) was sufficient to raise a factual issue regarding at least constructive notice. Sinceplaintiffs established triable issues regarding whether defendant had notice of the condition and whetherdefendant exercised reasonable care under the circumstances, the motion for summary judgment shouldhave been denied (see Stern v Ofori-Okai, 246 AD2d at 808-809).
Cardona, P.J., Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the order is reversed,on the law, with costs, and motion denied.