Gebo v. Jefferson Lewis Board of Cooperative Education Services

248 A.D.2d 1025, 670 N.Y.S.2d 642, 1998 N.Y. App. Div. LEXIS 3137

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 13, 1998
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Yvonne Gebo (plaintiff) when she slipped and fell on an allegedly icy sidewalk on defendant’s premises. Plaintiffs seek to hold defendant liable on the theory that defendant had constructive notice of the allegedly icy condition. Defendant denied the material allegations of the complaint and thereafter moved for summary judgment dismissing the complaint.

Supreme Court properly denied the motion because defendant failed to meet its initial burden of proving lack of constructive notice (see, Jordan v Musinger, 197 AD2d 889; see generally, Gordon v American Museum of Natural History, 67 NY2d 836, 837-838). “Failure to make such showing requires denial. of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Defendant’s proof did not establish that the allegedly icy condition was not visible and apparent or that it had not existed for a sufficient length of time before plaintiffs accident to permit defendant’s employees to discover and remedy it (see, Nikolic v Valley Stream Cent. High School Dist., 240 AD2d 551; Jordan v Musinger, supra, at 890). (Appeal from Order of Supreme Court, Jefferson County, Gilbert, J. — Summary Judgment.)

Present — Green, J. P., Pine, Lawton, Hayes and Wisner, JJ.