| Sabatino v 425 Oser Ave., LLC |
| 2011 NY Slip Op 06833 [87 AD3d 1127] |
| September 27, 2011 |
| Appellate Division, Second Department |
| Helen Sabatino, Appellant, v 425 Oser Avenue, LLC,Defendant/Third-Party Plaintiff-Respondent. AAA Maintenance, LLC, Third-PartyDefendant-Respondent. |
—[*1] Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein of counsel), fordefendant/third-party plaintiff-respondent. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Louis M.Cherkis of counsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries, etc., the plaintiff appeals, as limited byher brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), enteredApril 13, 2009, as granted the defendant's motion for summary judgment dismissing thecomplaint and denied the cross motion of the plaintiff and the plaintiff's decedent for leave toserve a supplemental summons and amended complaint adding the third-party defendant, AAAMaintenance, LLC, as a defendant in the main action.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,the defendant's motion for summary judgment dismissing the complaint is denied, and the crossmotion of the plaintiff and the plaintiff's decedent for leave to serve a supplemental summonsand amended complaint adding the third-party defendant, AAA Maintenance, LLC, as adefendant in the main action is granted.
On January 16, 2006, the plaintiff's now-deceased husband, Richard Sabatino (hereinafter thedecedent), was injured when he slipped and fell on snow and ice in the parking lot of acommercial building owned by the defendant 425 Oser Avenue, LLC (hereinafter Oser).According to the decedent's 2007 deposition testimony, the accident occurred at about 1:00 p.m.on a Monday afternoon as he was returning to the building after his lunch break. The decedentrecalled that it had snowed over the weekend prior to his accident, and that on Monday afternoonthree to five inches of snow still covered the surface of the parking lot, which did not appear tohave been plowed. As of the date of the accident, the third-party defendant, AAA Maintenance,LLC (hereinafter AAA), was contractually required to provide snow removal services to Oserwhen snowfall levels reached two inches or greater. The plaintiff and the decedent commencedthis action against Oser. After the completion of discovery, Oser moved for summary judgmentdismissing the complaint on the ground that it lacked actual or constructive notice of the allegeddangerous condition which caused the accident, and the plaintiff and her decedent cross-movedfor leave to serve a supplemental summons [*2]and amendedcomplaint adding AAA as a defendant in the main action. The Supreme Court granted Oser'smotion and denied the plaintiffs' cross motion. The decedent died while the appeal from the orderwas pending, the plaintiff was appointed as the representative of his estate, and the plaintiff wassubstituted for him. We reverse the order insofar as appealed from.
Contrary to the Supreme Court's determination, Oser failed to make a prima facie showing ofits entitlement to judgment as a matter of law. A defendant may be held liable for a dangerouscondition on its premises caused by the accumulation of snow or ice upon a showing that it hadactual or constructive notice of the condition, and that a reasonably sufficient time had lapsedsince the cessation of the storm to take protective measures (see Roofeh v 141 Great Neck Rd. Condominium, 85 AD3d 893[2011]; Taylor v Rochdale Vil.,Inc., 60 AD3d 930, 931 [2009]; Kaehler-Hendrix v Johnson Controls, Inc., 58 AD3d 604, 606[2009]). In support of its motion for summary judgment, Oser submitted the deposition testimonyof its facilities manager, who testified that, when he inspected the parking lot approximately twohours after snow stopped falling on Sunday, January 15, 2006, the parking lot had already beenplowed, a mixture of sand and salt had been applied, and only a minimal "dusting" of snowremained. Oser additionally relied upon the deposition testimony of AAA's principal, whosimilarly testified, based on his review of invoices, that plowing and sanding were performed onJanuary 15, 2006. However, Oser also submitted the deposition testimony of the decedent, whomaintained that three to five inches of snow still covered the parking lot on the afternoon ofMonday, January 16, 2006, and that no plowing appeared to have been performed. In view of thisconflicting testimony, Oser failed to sustain its burden of demonstrating the absence of anytriable, material issue of fact as to whether it had constructive notice of the allegedly dangerouscondition in the parking lot, and whether a reasonably sufficient time had elapsed after thecessation of the snowfall to enable it to take remedial measures (see Roofeh v 141 Great Neck Rd.Condominium, 85 AD3d 893 [2011]; Taylor v Rochdale Vil., Inc., 60 AD3d at931; Kaehler-Hendrix v Johnson Controls, Inc., 58 AD3d at 606-607). Since Oser failedto meet its prima facie burden, the Supreme Court should have denied its motion, regardless ofthe sufficiency of the opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]; Roofeh v 141 Great Neck Rd. Condominium, 85 AD3d at 894; Medina v La Fiura Dev. Corp., 69AD3d 686, 687 [2010]).
Furthermore, the Supreme Court should have granted the cross motion of the plaintiff and thedecedent for leave to serve a supplemental summons and amended complaint adding AAA as adefendant in the main action. As a general rule, leave to amend a pleading pursuant to CPLR3025 (b) should be freely granted in the absence of prejudice or surprise resulting from the delayin seeking leave, unless the proposed amendment is palpably insufficient or patently devoid ofmerit (see Jablonski v Jakaitis, 85AD3d 969, 971 [2011]; Scofield vDeGroodt, 54 AD3d 1017 [2008]; Lucido v Mancuso, 49 AD3d 220, 226-227 [2008]). Here, theproposed amended complaint asserting a cause of action against AAA is not palpably insufficientor patently devoid of merit on its face, and AAA, which has participated in the litigation since itsearly stages as a third-party defendant, did not establish that it would be prejudiced or surprisedby any delay in seeking to add it as a defendant in the main action. Skelos, J.P., Eng, Austin andMiller, JJ., concur.