| Rodriguez v Binghamton Hous. Auth. |
| 2012 NY Slip Op 08397 [101 AD3d 1222] |
| December 6, 2012 |
| Appellate Division, Third Department |
| Jenna Rodriguez, Respondent, v Binghamton Housing Authority,Appellant. |
—[*1] Alexander & Catalano, LLC, Rochester (Christina D. Porter of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Reynolds Fitzgerald, J.), enteredFebruary 22, 2012 in Broome County, which denied defendant's motion for summary judgmentdismissing the complaint.
At approximately 9:45 p.m. on January 16, 2010, plaintiff, who had spent the day runningerrands, returned home with take-out food from a local restaurant and parked in one of the lots ather housing complex, which was owned by defendant. Shortly after exiting her vehicle, plaintiffslipped and fell on what she later described as a patch of ice measuring three feet by three feet,allegedly sustaining various injuries to her right ankle. Plaintiff thereafter commenced thisnegligence action and, following joinder of issue and discovery, defendant moved for summaryjudgment dismissing the complaint. Supreme Court denied defendant's motion, prompting thisappeal.
To prevail on its motion for summary judgment, defendant was required to establish that itmaintained its property in a reasonably safe condition and, further, that it neither created thedangerous condition that caused plaintiff's fall nor had actual or constructive notice thereof (see Fallon v Duffy, 95 AD3d1416, 1416-1417 [2012]; Carpenterv J. Giardino, LLC, 81 AD3d 1231, 1231 [2011], lv denied 17 NY3d 710[2011]; Stewart v Canton-PotsdamHosp. Found., Inc., 79 AD3d 1406, 1406 [2010]). Plaintiff concedes in her brief thatdefendant did not have [*2]actual notice and, despite a conclusoryallegation in her complaint, does not now contend that defendant affirmatively created thedangerous condition at issue. Hence, our inquiry distills to whether defendant met its burden ofestablishing a lack of constructive notice.
In support of its motion for summary judgment, defendant submitted daily written inspectionreports detailing the snow removal and sanding/salting operations that occurred between January10, 2010 and January 17, 2010. According to these reports, the last snowfall occurred on January12, 2010, at which time all parking lots and walkways at the complex were "PLOWED ANDSALTED," and the inspection report for the following day indicated that defendant's maintenancestaff "CHECKED BAD AREAS FOR SALTING." No additional snowfall was noted afterJanuary 12, 2010, and the reports issued after January 13, 2010—up to and including theday of plaintiff's accident—indicated that the parking lots, walkways and steps at thecomplex had been inspected and were "ALL FINE." Additionally, none of the inspection reportsprepared by defendant's on-site maintenance supervisor reflected that any incidents had beenreported with respect to the parking lots, stairs or walkways at the complex, and the on-callmaintenance contractor, who performed after-hours emergency services for defendant, testified athis examination before trial that he did not receive any complaints regarding an icy conditionwith respect thereto.[FN1]Contrary to Supreme Court's finding, we deem such proof to be sufficient to dischargedefendant's initial burden on its motion for summary judgment (see Stewart vCanton-Potsdam Hosp. Found., Inc., 79 AD3d at 1407; Uhlinger v Gloversville Enlarged School Dist., 19 AD3d 780, 781[2005]), thereby shifting the burden to plaintiff to raise a question of fact as to constructivenotice.[FN2]
In this regard, plaintiff testified at her examination before trial that she observed manypatches of ice in the parking lot when she left to run errands at approximately 1:00 p.m. on theday of her accident and, upon returning later that evening, she again observed patches of snowand ice in the parking lot. Plaintiff also submitted an affidavit from her husband, who averredthat on each day between January 10, 2010 and January 16, 2010 and in the course of going toand returning from work, he observed "large patches of ice throughout the . . .parking lot" and, more to the point, "no evidence of any salt or other de-icing agents." Moreover,plaintiff's husband stated that he was in the parking lot on multiple occasions followingdefendant's snow removal and salting operations on January 12, 2010, at which time he"continued to notice large [*3]patches of ice throughout the. . . parking lot with no evidence [that any] salt or other de-icing agents [had been]applied."
It is true, as defendant posits, that the failure to remove all snow and ice from aparking lot does not constitute negligence (see Wheeler v Grande'Vie Senior Living Community, 31 AD3d992, 992-993 [2006]), that "a general awareness that snow and ice may accumulate or ispresent is insufficient to provide constructive notice of the injury-producing condition"(Cardinale v Watervliet Hous. Auth., 302 AD2d 666, 667 [2003]) and, further, thatplaintiff indeed will be required to establish at trial that defendant had notice of the icy conditionalleged here (see Managault vRensselaer Polytechnic Inst., 62 AD3d 1196, 1197 [2009]). For purposes of theunderlying motion, however, all that is required of plaintiff is that she tender sufficientadmissible proof to raise a question of fact as to whether the icy condition present in the parkinglot on the night of her accident was visible and apparent and existed for a sufficient period oftime prior to her fall to permit defendant to discover and remedy it (see Pierson v North Colonie Cent. SchoolDist., 74 AD3d 1652, 1654-1655 [2010], lv denied 15 NY3d 715 [2010]; Kearsey v Vestal Park, LLC, 71 AD3d1363, 1364 [2010]). As her examination before trial testimony and the affidavit submitted byher husband are sufficient for that purpose, defendant's motion for summary judgment dismissingthe complaint was properly denied (seeWilliams v Kenyon, 63 AD3d 1423, 1423-1424 [2009]; Candelario v Watervliet Hous. Auth.,46 AD3d 1073, 1074-1075 [2007]; Uhlinger v Gloversville Enlarged School Dist.,19 AD3d at 781). Defendant's remaining contentions, to the extent not specifically addressed,have been examined and found to be lacking in merit.
Mercure, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: Defendant's on-site maintenancestaff was present weekdays between 8:00 a.m. and 4:30 p.m., and the on-call contractor coveredthe overnight and weekend hours.
Footnote 2: In reaching this conclusion, weattach no significance to the limited meteorological reports submitted by defendant for the day of(and the day prior to) plaintiff's accident. Although the raw data tendered indeed reflects thattemperatures fluctuated above and below freezing on the days in question, in the absence of anexpert affidavit attesting to the range and significance of the fluctuations, we find such proof tobe inconclusive, i.e., such fluctuations—standing alone—are neither fatal todefendant's motion nor sufficient to raise a question of fact with respect thereto (compare Williams v Kenyon, 63 AD3d1423, 1424 [2009]).