| Denardo v Ziatyk |
| 2012 NY Slip Op 03588 [95 AD3d 929] |
| May 8, 2012 |
| Appellate Division, Second Department |
| Brandi Denardo, Appellant, v Michael Ziatyk et al.,Respondents. |
—[*1] Edward M. Eustace, White Plains, N.Y. (Rose M. Cotter of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (O. Bellantoni, J.), entered March 29, 2011, whichgranted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
The plaintiff, a United States Postal Service mail carrier, allegedly slipped and fell on snowand ice on the defendants' driveway as she attempted to exit the property. An icy snowstorm hadoccurred three days prior to the date of the incident. There was a walkway and steps leading tothe defendants' front entrance where mail was to be dropped off. The defendant Lynn Ziatyktestified at her deposition that she had cleared all snow and ice from the walkway and steps, andpartially shoveled the driveway on the date of the incident with the help of her neighbor. Theplaintiff testified that there was snow and ice all over the defendants' property, and that, at thetime of the accident, it did not appear as if anyone had engaged in snow removal work. Theplaintiff traversed the walkway and steps leading to the front entrance to deliver the mail, but shewalked across the lawn and down the driveway to leave the property. She was about six feetaway from the end of the driveway when she allegedly fell on snow and ice.
A property owner may be held liable for a slip-and-fall accident involving snow and ice onits property only when it created the dangerous condition which caused the accident or had actualor constructive notice thereof (seeMedina v La Fiura Dev. Corp., 69 AD3d 686 [2010]; Olivieri v GM Realty Co., LLC, 37AD3d 569 [2007]). Here, the defendants failed to establish, prima facie, that they did notcreate or have actual or constructive notice of the alleged hazardous condition that caused theplaintiff to fall (see Medina v La FiuraDev. Corp., 69 AD3d 686 [2010]; Bergen v Carlin, 297 AD2d 692 [2002]).Contrary to the defendants' contention, the evidence did not demonstrate, prima facie, that theplaintiff's conduct of traversing the driveway instead of the walkway and steps to leave theproperty was the sole proximate cause of the accident (see Derdiarian v Felix Contr.Corp., 51 NY2d 308 [1980]; Ettari v30 Rampasture Owners, Inc., 15 AD3d 611 [2005]). Since the defendants failed to meettheir initial [*2]burden, the Supreme Court should have deniedtheir motion for summary judgment dismissing the complaint, irrespective of the plaintiff'sopposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).Dillon, J.P., Balkin, Eng and Chambers, JJ., concur.