| Feola v City of New York |
| 2013 NY Slip Op 00304 [102 AD3d 827] |
| January 23, 2013 |
| Appellate Division, Second Department |
| Daisy Feola et al., Appellants, v City of New Yorket al., Defendants, and Central Parking Systems, Respondent. |
—[*1] Michael E. Pressman, New York, N.Y. (Steven Cohen of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Richmond County(Fusco, J.), dated May 9, 2011, as granted that branch of the motion of the defendantCentral Parking Systems which was for summary judgment dismissing the complaintinsofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, with costs, and thatbranch of the motion of the defendant Central Parking Systems which was for summaryjudgment dismissing the complaint insofar as asserted against it is denied.
On December 12, 2005, the injured plaintiff slipped and fell on ice in a parking lotwhile walking from her parked car to a bus stop. The subject parking lot was part of aparking facility consisting of several lots operated by the defendant Central ParkingSystems (hereinafter CPS). At the relevant time, CPS had a contract with Snoquip, Inc.(hereinafter Snoquip), to perform snow removal services at the lots. Snoquipsubcontracted the snow removal services to C&T Building Construction Corp. Theinjured plaintiff, and her husband suing derivatively, thereafter commenced this actionagainst, among others, CPS. The Supreme Court granted that branch of CPS's motionwhich was for summary judgment dismissing the complaint insofar as asserted against it.
"A real property owner or a party in possession or control of real property will beheld liable for injuries sustained in a slip-and-fall accident involving snow and ice on itsproperty only when it created the alleged dangerous condition or had actual orconstructive notice of it" (Cantwell v Fox Hill Community Assn., Inc., 87 AD3d1106, 1106 [2011]; seeLittleton v Amberland Owners, Inc., 94 AD3d 953 [2012]; Flores v BAJ Holding Corp.,94 AD3d 945 [2012]). Thus, a defendant who moves for summary judgment in aslip-and-fall case has the initial burden of making a prima facie showing that it neithercreated the hazardous condition nor had actual or constructive notice of its existence fora sufficient length of time to discover and remedy it (see Flores v BAJ HoldingCorp., 94 AD3d at 946). " 'A defendant has constructive notice of a defect when it isvisible and apparent, and has existed for a sufficient length of time before the accidentthat it could have been discovered and corrected' " (Williams v SNS Realty of Long Is., Inc., 70 AD3d 1034,1035 [2010], quoting Hayden vWaldbaum, Inc., 63 AD3d 679, 679 [2009]; see Gordon v AmericanMuseum of Natural History, 67 NY2d 836, 837-838 [1986]). "To meet its initialburden on the issue of lack of constructive notice, [a] defendant must offer someevidence as to when the area in question was last cleaned or inspected relative to the timewhen the plaintiff fell" (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598,598-599 [2008]; see Williams v SNS Realty of Long Is., Inc., 70 AD3d at 1035;Pryzywalny v New York CityTr. Auth., 69 AD3d 598 [2010]; Musachio v Smithtown Cent. School Dist., 68 AD3d 949,949-950 [2009]; Sherry vWal-Mart Stores E., L.P., 67 AD3d 992, 993-994 [2009]; Holub v Pathmark Stores, Inc.,66 AD3d 741, 742 [2009]; Braudy v Best Buy Co., Inc., 63 AD3d 1092, 1092 [2009]).
CPS, in support of its motion for summary judgment dismissing the complaintinsofar as asserted against it, offered no evidence as to what, if any, cleaning proceduresor inspection procedures were performed from December 9, 2005, when the parking lotsat its facility were plowed, until the time of the injured plaintiff's accident on December12, 2005 (see Birnbaum v New York Racing Assn., Inc., 57 AD3d at 598; Schiano v Mijul, Inc., 79AD3d 726 [2010]; Roy vCity of New York, 65 AD3d 1030 [2009]; cf. Rios v New York City Hous. Auth., 48 AD3d 661[2008]). Therefore, the Supreme Court erred in granting CPS's motion for summaryjudgment, as it did not meet its prima facie burden of showing a lack of constructivenotice of the ice condition that allegedly caused the injured plaintiff's accident. In light ofthat failure, it is unnecessary to determine whether the plaintiffs' papers submitted inopposition to CPS's motion were sufficient to raise a triable issue of fact (see Alvarezv Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med.Ctr., 64 NY2d 851 [1985]). Dillon, J.P., Balkin, Chambers and Hall, JJ., concur.