Opinion
CA 02-02492
July 3, 2003.
Appeal from an order of Supreme Court, Oneida County (Grow, J.), entered July 18, 2002, which denied defendant's motion for summary judgment dismissing the complaint.
SMITH, SOVIK, KENDRICK SUGNET, P.C., SYRACUSE (STEVEN WARD WILLIAMS OF COUNSEL), FOR DEFENDANT-APPELLANT.
LOCKWOOD GOLDEN, UTICA (B. BROOKS BENSON OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Plaintiff commenced this action to recover damages for injuries that she sustained when she slipped and fell on icy steps leading from the apartment she leased from defendant to the common sidewalk. Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint. Although defendant met its initial burden on the motion by submitting the lease, which provides that the tenant is responsible for removal of ice and snow, plaintiff raised a triable issue of fact by submitting proof that defendant engaged in a "course of conduct demonstrating that [it] * * * assumed responsibility to maintain" the subject walkway ( Gelardo v. ASTHMA Realty Corp., 137 A.D.2d 787, 788). Whether plaintiff reasonably relied on that course of conduct to her detriment is an issue of fact for trial ( cf. Falu v. 233 Assoc., 258 A.D.2d 342, 343).