Guck v. Palozzi

269 A.D.2d 777, 702 N.Y.S.2d 488, 2000 N.Y. App. Div. LEXIS 1659

Opinion

—Order unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: Plaintiff commenced this action seeking damages for a knee injury she sustained when she fell on an icy patch on a sidewalk located at a shopping center owned by defendant. Supreme Court erred in granting the motion of defen dant for summary judgment dismissing the complaint. Although plaintiff will bear the burden at trial of proving that defendant had constructive notice of the icy patch on the sidewalk, on this motion for summary judgment defendant bore the burden of establishing entitlement to judgment as a matter of law (see, Jordan v Musinger, 197 AD2d 889). Defendant failed to establish lack of constructive notice as a matter of law. Consequently, the motion should have been denied, “regardless of the sufficiency of the opposing papers” (Rodgers v Earl, 249 AD2d 990; see also, Jordan v Musinger, supra, at 889). (Appeal from Order of Supreme Court, Monroe County, Frazee, J. — Summary Judgment.) Present — Green, A. P. J., Pine, Pigott, Jr., and Scudder, JJ.