| Flores v BAJ Holding Corp. |
| 2012 NY Slip Op 02837 [94 AD3d 945] |
| April 17, 2012 |
| Appellate Division, Second Department |
| Catalina Flores, Respondent, v BAJ Holding Corp.,Appellant. |
—[*1] PeÑa & Kahn, PLLC, Bronx, N.Y. (Diane Welch Bando of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Saitta, J.), entered August 8, 2011, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
This action arises from the plaintiff's alleged slip and fall on black ice on the exterior stairs ofthe residential multiple dwelling in which she resided.
A real property owner or a party in possession or control of real property will be held liablefor injuries sustained in a slip-and-fall accident involving snow and ice on its property only whenit created the alleged dangerous condition or had actual or constructive notice of it (see Cantwell v Fox Hill Community Assn.,Inc., 87 AD3d 1106 [2011]; Crosthwaite v Acadia Realty Trust, 62 AD3d 823 [2009]; Abbattista v King's Grant Master Assn.,Inc., 39 AD3d 439 [2007]; Nielsen v Metro-North Commuter R.R. Co., 30 AD3d 497 [2006]).Thus, a defendant who moves for summary judgment in a slip-and-fall case has the initial burdenof making a prima facie showing that it neither created the hazardous condition nor had actual orconstructive notice of its existence for a sufficient length of time to discover and remedy it (see Santoliquido v Roman Catholic Churchof Holy Name of Jesus, 37 AD3d 815, 815-816 [2007]). Only after this threshold burdenhas been satisfied will the court examine the sufficiency of the plaintiff's opposition (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Under the circumstances presented here, the defendant failed to meet its initial burden as themovant (see Medina v La Fiura Dev.Corp., 69 AD3d 686 [2010]; Baines v G&D Ventures, Inc., 64 AD3d 528, 529 [2009]; Totten v Cumberland Farms, Inc., 57AD3d 653, 654 [2008]; Strange vColgate Design Corp., 6 AD3d 422 [2004]). We agree with the Supreme Court that thedeposition transcripts submitted by the defendant in support of its motion were irreconcilablycontradictory as to, among other things, the weather conditions preceding the accident, theduration of the existence of the patch of ice on which the injured plaintiff allegedly fell, whetheror not the defendant created the hazardous [*2]condition and, ifnot, whether or not the defendant was on notice of the icy condition. Accordingly, the SupremeCourt properly denied the defendant's motion for summary judgment dismissing the complaint(see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Mignogna v 7-Eleven, Inc., 76 AD3d1054, 1055 [2010]; Strange v Colgate Design Corp., 6 AD3d at 423). Rivera, J.P.,Florio, Chambers and Cohen, JJ., concur.