Opinion
No. CA 07-01871.
December 31, 2008.
Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered September 6, 2007 in a personal injury action. The order granted the motion of defendants for summary judgment and dismissed the amended complaint.
BROWN TARANTINO, LLC, BUFFALO (ANN M. CAMPBELL OF COUNSEL), FOR plaintiff's-APPELLANTS.
OSBORN, REED BURKE, LLP, ROCHESTER (ROBERT T. DIGIULIO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Before: Hurlbutt, J.P., Smith, Green, Pine and Gorski, JJ.
It is hereby ordered that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the amended complaint insofar as the amended complaint, as amplified by the bill of particulars, alleges that defendants had constructive notice of the alleged dangerous condition and as modified the order is affirmed without costs.
Memorandum: plaintiff's commenced this action to recover damages for injuries sustained by Patricia Piersielak (plaintiff) when she slipped and fell in a parking lot owned and operated by defendants. plaintiff's asserted in their bill of particulars that defendants had constructive notice of the alleged dangerous condition but that they were unaware "at this time" whether defendants had actual notice thereof. Defendants thereafter moved for summary judgment dismissing the amended complaint, and Supreme Court granted the motion. We agree with plaintiff's that the court erred in granting the motion insofar as the amended complaint, as amplified by the bill of particulars, alleges that defendants had constructive notice of the alleged dangerous condition, and we therefore modify the order accordingly. We note at the outset that plaintiff's did not allege that defendants created a dangerous condition, nor did they attempt to refute the evidence submitted by defendants establishing that they did not have actual notice of the alleged dangerous condition. Thus, the sole issue before us is whether defendants established as a matter of law that they lacked constructive notice of the alleged dangerous condition, and we conclude that they failed to do so.
Here, defendants failed to establish "`that the ice formed so close in time to the accident that [they] could not reasonably have been expected to notice and remedy the condition'" ( Conklin v Ulm, 41 AD3d 1290, 1291). Indeed, although defendants submitted evidence establishing that the area where plaintiff fell had been salted at approximately 6:30 A.M. and that plaintiff fell between 11:30 A.M. and 11:45 A.M., "[t]he salting of the area [in question] approximately [five] hours before plaintiff fell does not establish that the ice formed so close in time to the accident that defendants] could not reasonably have been expected to notice and remedy the condition" ( id.). We conclude in any event that plaintiff's raised a triable issue of fact whether defendants had constructive notice of the alleged dangerous condition ( see generally Bullard v Pfohl's Tavern, Inc., 11 AD3d 1026). Also contrary to the contention of defendants, they failed to establish that there was a storm in progress and thus that they are relieved of liability. The sole evidence submitted by defendants in support of that contention was the affidavit of a meteorologist who did not append thereto any of the weather records upon which he relied. Thus, the affidavit of the meteorologist "has no probative value" ( Daniels v Meyers, 50 AD3d 1613, 1614).
We have considered defendants' remaining contention and conclude that it is without merit.