| Shelters v City of Dunkirk Hous. Auth. |
| 2015 NY Slip Op 02252 [126 AD3d 1329] |
| March 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| Laura Shelters, Respondent, v City of Dunkirk HousingAuthority, Appellant. |
Barth Sullivan Behr, Buffalo (Laurence D. Behr of counsel), fordefendant-appellant.
Campbell & Shelton, LLP, Eden (Eric M. Shelton of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Chautauqua County (Deborah A.Chimes, J.), entered October 23, 2013 in a personal injury action. The interlocutoryjudgment, among other things, adjudged that defendant was negligent.
It is hereby ordered that the judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries sheallegedly sustained when she slipped and fell on ice on a sidewalk on defendant'spremises. The matter proceeded to trial and, at the close of proof, defendant moved for adirected verdict pursuant to CPLR 4401 on the issue of notice, i.e., whether it had anopportunity to remedy the alleged dangerous ice condition. Supreme Court denied themotion, and the jury returned a verdict finding that defendant was negligent. Weaffirm.
A directed verdict pursuant to CPLR 4401 is "appropriate where the trial court findsthat, upon the evidence presented, there is no rational process by which the fact triercould base a finding in favor of the nonmoving party" (Szczerbiak v Pilat, 90NY2d 553, 556 [1997]). In considering such a motion, "the trial court must afford theparty opposing the motion every inference which may properly be drawn from the factspresented, and the facts must be considered in a light most favorable to the nonmovant"(id.).
Here, the court properly denied defendant's motion for a directed verdict. Ondefendant's premises is a residential facility that is open 24 hours per day. Defendant'switnesses testified that residents entered and exited the premises at all hours of the day,and that residents could have visitors, including medical personnel, prior to 8:00 a.m. andafter 4:30 p.m. Defendant's maintenance staff, however, did not provide any routinesnow or ice removal after 4:30 p.m. or before 8:00 a.m. Plaintiff fell at approximately8:00 a.m., and the record supported an 8- to 12-hour time period between the time of iceformation and plaintiff's fall. Thus, defendant failed to establish "that the ice formed soclose in time to the accident that [it] could not reasonably have been expected to noticeand remedy the condition" (Piersielak v Amyell Dev. Corp., 57 AD3d 1422, 1423[2008] [internal quotation marks omitted]).
Defendant failed to preserve for our review its remaining contentions inasmuch as it"did not move for a directed verdict on the [additional] ground[s] now raised on appeal"(Tomaszewski v Seewaldt,11 AD3d 995, 995 [2004]; see Givens v Rochester City School Dist., 294AD2d 898, 899 [2002]). Present—Scudder, P.J., Smith, Valentino, Whalen andDeJoseph, JJ.