Tonkin v. Widewaters Lakewood Village Center Co.

71 A.D.3d 1498, 895 N.Y.S.2d 908

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 2010
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Chautauqua County (James H. Dillon, J.), entered July 1, 2009 in a personal injury action. The order denied the motion of defendants for summary judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed with costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Krystal Tonkin (plaintiff) when she slipped and fell on snow-covered ice in a parking lot owned by defendants. Supreme Court properly denied defendants’ motion seeking summary judgment dismissing the amended complaint. Defendants’ own submissions raise a triable issue of fact whether plaintiff fell “as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter” (Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]), or whether she fell as the result of ice that had accumulated prior to the storm (see Stalker v Crestview Cadillac Corp., 284 AD2d 977 [2001]). In addition, defendants failed to meet their initial burden of establishing that they lacked constructive notice of the icy condition (see Walter v United Parcel Serv., Inc., 56 AD3d 1187 [2008]; Simmons v Oswego County Sav. Bank, 306 AD2d 825 [2003]). Present—Centra, J.P., Fahey, Carni, Green and Pine, JJ.