| Dhu v New York City Hous. Auth. |
| 2014 NY Slip Op 05300 [119 AD3d 728] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Ambrozine Dhu, Respondent, v New YorkCity Housing Authority, Appellant. |
Cullen & Dykman LLP, New York, N.Y. (Kevin C. McCaffrey of counsel), forappellant.
Rosenberg, Minc, Falkoff & Wolff, LLP, New York, N.Y. (Steven C. Falkoffof counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Kings County (Saitta, J.), dated January 17, 2013, whichdenied its motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
A real property owner or a party in possession or control of real property will be heldliable 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 (seeCruz v Rampersad, 110 AD3d 669 [2013]; Denardo v Ziatyk, 95 AD3d 929 [2012]; Flores v BAJ Holding Corp.,94 AD3d 945 [2012]; Cantwell v Fox Hill Community Assn., Inc., 87 AD3d 1106[2011]; Crosthwaite v AcadiaRealty Trust, 62 AD3d 823 [2009]). Thus, a defendant who moves for summaryjudgment in a slip-and-fall case has the initial burden of making a prima facie showingthat it neither created the hazardous condition nor had actual or constructive notice of itsexistence for a sufficient length of time to discover and remedy it (see Cruz vRampersad, 110 AD3d at 670; Santoliquido v Roman Catholic Church of Holy Name of Jesus,37 AD3d 815, 815-816 [2007]). "To meet its initial burden on the issue of lack ofconstructive notice, the defendant must offer some evidence as to when the area inquestion was last cleaned or inspected relative to the time when the plaintiff fell" (Birnbaum v New York RacingAssn., Inc., 57 AD3d 598, 598-599 [2008]; see Oliveri v Vassar Bros. Hosp., 95 AD3d 973 [2012]; Mei Xiao Guo v Quong Big RealtyCorp., 81 AD3d 610, 611 [2011]).
Here, contrary to the defendant's contentions on appeal, it failed to establish that itlacked constructive notice of a large layer of ice which allegedly caused the plaintiff toslip and fall in the defendant's parking lot (see Feola v City of New York, 102 AD3d 827, 828 [2013];Taylor v Rochdale Vil.,Inc., 60 AD3d 930, 931-932 [2009]). At a hearing held pursuant to GeneralMunicipal Law § 50-h, and at her deposition, the plaintiff testified that shehad observed the ice condition the evening before the accident when she parked her carin the parking lot. In support of its motion, the defendant failed to establish that ice wasnot present when it last inspected or cleaned the area (see Birnbaum v New YorkRacing Assn., Inc., 57 AD3d at 598-599). Furthermore, the defendant failed toeliminate all triable issues of fact as to whether the large layer of ice upon which theplaintiff allegedly slipped [*2]was created by thedefendant's snow removal efforts in the days prior to the accident (see San Marco v Village/Town ofMount Kisco, 16 NY3d 111, 118 [2010]).
Since the defendant failed to establish its prima facie entitlement to judgment as amatter of law, it is unnecessary to consider whether the papers submitted by the plaintiffin opposition were sufficient to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64NY2d 851 [1985]; see also Feola v City of New York, 102 AD3d at 828).
Accordingly, the Supreme Court properly denied the defendant's motion for summaryjudgment dismissing the complaint. Skelos, J.P., Chambers, Lott and Duffy, JJ.,concur.