| Tate v Golub Props., Inc. |
| 2013 NY Slip Op 01314 [103 AD3d 1080] |
| February 28, 2013 |
| Appellate Division, Third Department |
| Michael Tate, Respondent, v Golub Properties, Inc.,Appellant, et al., Defendant. |
—[*1] Anderson, Moschetti & Taffany, Latham (David J. Taffany of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Kramer, J.), entered April30, 2012 in Schenectady County, which, among other things, denied a motion bydefendant Golub Properties, Inc. for summary judgment dismissing the amendedcomplaint against it.
On January 25, 2009, plaintiff allegedly fell on ice and snow while carrying debris toa dumpster in the parking lot adjacent to the Family Dollar store where he was employedin the City of Schenectady, Schenectady County. The property where the store waslocated was owned by defendant Golub Properties, Inc. (hereinafter defendant), anddefendant's representative acknowledged that defendant retained responsibility formaintaining the parking lot. Plaintiff commenced this action against defendant, anddefendant brought a third-party action seeking contribution and indemnification fromWilliam M. Larned & Sons, Inc., the company that it had hired to perform snow and iceremoval. Plaintiff served an amended complaint asserting a claim against Larned.Following disclosure, defendant moved for summary judgment dismissing the complaintagainst it and Larned moved for summary judgment dismissing the complaint as well asportions of the third-party complaint and cross claim against it. Supreme Court grantedLarned's motion in its entirety, but denied defendant's motion. Defendant appeals,arguing that Supreme Court erred in finding a triable issue as to whether defendant hadconstructive notice of the snow and ice that allegedly caused plaintiff's fall.[*2]
We affirm. "In order to prevail on its motion forsummary judgment, defendant was required to establish that it maintained the premises ina reasonably safe condition and neither created nor had actual or constructive notice ofthe allegedly dangerous condition" (Managault v Rensselaer Polytechnic Inst., 62 AD3d 1196,1197 [2009] [internal quotation marks and citations omitted]; see Califano v Dubonnet HairStylists, 96 AD3d 1290, 1291 [2012]). Constructive notice is at issue here,which "requires a showing that the condition was visible and apparent and existed for asufficient period of time prior to the accident to permit defendant[ ] to discover it andtake corrective action" (Boyko v Limowski, 223 AD2d 962, 964 [1996]; see Torosian v Bigsbee Vil.Homeowners Assn., 46 AD3d 1314, 1315 [2007]). The evidence is viewed inthe light most favorable to the party opposing summary judgment (see Kropp v Corning, Inc., 69AD3d 1211, 1212 [2010]; Candelario v Watervliet Hous. Auth., 46 AD3d 1073, 1074[2007]).
Proof in the record indicates that the last snowfall of any consequence before theJanuary 25, 2009 accident occurred a week earlier, on January 18, 2009, when threeinches of snow fell. Larned reportedly plowed on January 19, 2009 and salted thepremises the next day, but did no further work in the parking lot before the accident.Plaintiff testified that he had been working at Family Dollar for less than one month andthe incident occurred the first time he had taken debris to the dumpster. He described anarea of snow and ice in front of the dumpster that was three to four feet wide and had afour to five-inch ledge. Plaintiff recalled that the area of snow and ice had footprints andtire marks in it. Defendant's representative testified that she typically inspected thepremises only once every four to six weeks and she had no record or recollection ofinspecting the property during the week before the accident. Although contrary evidencewas presented by defendant about the prevailing condition of the parking lot, plaintiff'sproof was sufficient as regards size, visibility and length of existence of the ice and snowto raise a triable question on the issue of constructive notice.
Peters, P.J., Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.