| Roofeh v 141 Great Neck Rd. Condominium |
| 2011 NY Slip Op 05252 [85 AD3d 893] |
| June 14, 2011 |
| Appellate Division, Second Department |
| Parvin Roofeh, Appellant, v 141 Great Neck RoadCondominium, Respondent. |
—[*1] Malapero & Prisco, LLP, New York, N.Y. (Andrew L. Klauber of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Mahon, J.), entered August 17, 2010, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
"A party may be held liable for a hazardous condition created on its premises as the result ofthe accumulation of snow or ice during a storm upon a showing that it had actual or constructivenotice of the dangerous condition and that a reasonably sufficient time had lapsed since thecessation of the storm to take protective measures" (Robles v City of New York, 255AD2d 305, 306 [1998]; seeKrichevskaya v City of New York, 30 AD3d 471 [2006]).
Contrary to the Supreme Court's determination, the defendant failed to make a prima facieshowing of its entitlement to summary judgment as a matter of law (see Zuckerman v City ofNew York, 49 NY2d 557, 560 [1980]). To establish that it had no actual or constructivenotice of the allegedly dangerous icy condition, the defendant relied upon the deposition of itsdoorman, Mauricio Castillo, who testified that he shoveled and salted the walkway several timesduring his midnight to 8:00 a.m. shift. However, Castillo's testimony conflicted with thedeposition testimony of the doorman supervisor, Adolfo Quintanilla, that Castillo was workingthe 8:00 a.m. to 4:00 p.m. shift. Additionally, Castillo's testimony that the plaintiff slipped andfell at 8:00 a.m. and that it was snowing at the time conflicted with the plaintiff's depositiontestimony—also submitted by the defendant in support of its motion—that she fellbetween noon and 1:00 p.m., and that it was "cloudy and cold" at the time of her accident. "Inview of this conflicting evidence, the defendant[ ] failed to sustain their burden of demonstratingthe absence of any material issue of fact" (Mazzio v Highland Homeowners Assn. & Condos, 63 AD3d 1015,1016 [2009]).
Since the defendant failed to meet its prima facie burden, the Supreme Court should have[*2]denied the defendant's motion, regardless of the sufficiency ofthe plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853. Dillon, J.P., Leventhal, Hall and Lott, JJ., concur.