| Gwitt v Denny's, Inc. |
| 2012 NY Slip Op 01025 [92 AD3d 1231] |
| February 10, 2012 |
| Appellate Division, Fourth Department |
| Thomas Gwitt, Respondent, v Denny's, Inc., et al., Appellants, etal., Defendants. |
—[*1] Brown Chiari LLP, Lancaster (David W. Olson of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), enteredJanuary 12, 2011 in a personal injury action. The order, insofar as appealed from, denied in partthe motion of defendants for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action alleging that he slipped and fell on snow andice in the parking lot of defendant Denny's, Inc., also, as noted by Supreme Court, improperlysued as Denny's Restaurant (Denny's). Defendants thereafter moved for summary judgmentdismissing the second amended complaint. As relevant to this appeal, the court granted themotion in part with respect to Denny's, determining that Denny's was entitled to summaryjudgment insofar as the second amended complaint, as amplified by the bill of particulars,alleged that Denny's was negligent in creating the icy condition and in having actual notice of it,but that Denny's failed to meet its initial burden on the motion of establishing as a matter of lawthat it lacked constructive notice of the icy condition. Denny's appeals, contending that the courtshould have granted the motion in its entirety with respect to it. We affirm.
With respect to constructive notice, Denny's had the initial burden of establishing that the icewas not visible and apparent (seePhillips v Henry B'S, Inc., 85 AD3d 1665, 1666 [2011]; Mullaney v Royalty Props., LLC, 81AD3d 1312 [2011]), or "that the ice formed so close in time to the accident that [Denny's]could not reasonably have been expected to notice and remedy the condition" (Jordan vMusinger, 197 AD2d 889, 890 [1993]). Contrary to Denny's contention, the fact that plaintiffdid not notice the ice before he slipped on it does not establish Denny's entitlement to judgmentas a matter of law on the issue whether the ice was visible and apparent. Indeed, plaintiff testifiedwithout contradiction at his deposition that he observed the ice after he fell, immediately after heexited his car (see King v Sam's E.,Inc., 81 AD3d 1414, 1415 [2011]; Russo v YMCA of Greater Buffalo, 12 AD3d 1089 [2004], lvdismissed 5 NY3d 746 [2005]).[*2]
Contrary to Denny's further contention, the depositiontestimony of Denny's manager that she routinely inspected the parking lot did not establish as amatter of law that the ice formed so close in time to the accident that Denny's may not be chargedwith constructive notice of it (seeConklin v Ulm, 41 AD3d 1290 [2007]). The manager acknowledged at her depositionthat she did not inspect the entire parking lot on the morning in question, and that she wasprimarily looking for garbage, not icy conditions. Although the manager later set forth in anaffidavit that she specifically inspected the parking lot for icy conditions when she left therestaurant for the bank at 9:00 a.m., that assertion is at odds with her deposition testimony. Wethus conclude that the affidavit was " 'tailored to avoid the consequences of' " that depositiontestimony (Tronolone v Jankowski,74 AD3d 1721, 1722 [2010]), and that the conflict between her deposition testimony and heraffidavit raises a question of credibility to be resolved at trial (see Palmer v Horton, 66 AD3d 1433, 1434 [2009]).Present—Scudder, P.J., Centra, Peradotto, Lindley and Martoche, JJ.