Baillet v. Auerbach

277 A.D.2d 335, 717 N.Y.S.2d 215, 2000 N.Y. App. Div. LEXIS 12062

Opinion

—In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated December 21, 1999, as denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the defendants’ motion for summary judgment. After the defendants made out a prima facie case for summary judgment, the plaintiffs raised a triable issue of fact as to whether the defendants had actual or constructive notice of the icy condition (see, Goldman v Waldbaum, Inc., 248 AD2d 436; Bordonaro v Garcia, 242 AD2d 256; Arcuri v Vitolo, 196 AD2d 519), and whether the icy condition had existed for a “ ‘sufficient length of time prior to the accident to permit defendant [s’] employees to discover and remedy it’ ” (Bykofsky v Waldbaum’s Supermarkets, 210 AD2d 280, 281; see, Gordon v American Museum of Natural History, 67 NY2d 836).

Furthermore, a triable issue of fact exists as to whether the defendants created the icy condition when snow shovelled by their employees melted and refroze (see, Grizzaffi v Paparodero Holding Corp., 261 AD2d 437; Roca v Gerardi, 243 AD2d 616; Kay v Flying Goose, 203 AD2d 332). O’Brien, J. P., Thompson, H. Miller and Schmidt, JJ., concur.