Opinion
2014-02-4
Thomas A. MIKE, Petitioner–Respondent, v. 91 PAYSON OWNERS CORP., et al., Respondents–Appellants.
Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellants. Barry, McTiernan & Moore, LLC, New York (Laurel A. Wedinger of counsel), for respondent.
Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellants. Barry, McTiernan & Moore, LLC, New York (Laurel A. Wedinger of counsel), for respondent.
MAZZARELLI, J.P., ACOSTA, SAXE, MOSKOWITZ, JJ.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered August 5, 2013, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff was injured after he allegedly slipped and fell on ice obscured by new snow that was on the sidewalk in front of the building where he lived. Although defendants, the owner and property manager of the building, established that it was snowing when plaintiff fell, the conflicting expert affidavits as to the weather conditions that existed on the day of and days prior to the accident raised triable issues as to whether the ice that allegedly caused the accident was formed before the storm, as opposed to being created by the precipitation from the storm in progress ( see Bogdanova v. Falcon Meat Mkt., 107 A.D.3d 638, 639, 969 N.Y.S.2d 16 [1st Dept.2013]; Massey v. Newburgh W. Realty, Inc., 84 A.D.3d 564, 567, 923 N.Y.S.2d 81 [1st Dept.2011] ). Defendants also failed to indicate when the sidewalk had last been inspected or cleaned of snow and ice ( see Bojovic v. Lydig Bejing Kitchen, Inc., 91 A.D.3d 517, 936 N.Y.S.2d 205 [1st Dept.2012] ), and their showing of their general cleaning procedures is insufficient to satisfy their burden of establishing that they lacked notice of the alleged condition prior to the accident ( see Rodriguez v. Bronx Zoo Rest., Inc., 110 A.D.3d 412, 972 N.Y.S.2d 31 [1st Dept.2013] ). Plaintiff's affidavit does not conflict with his deposition testimony ( see Alvia v. Mutual Redevelopment Houses, Inc., 56 A.D.3d 311, 312, 868 N.Y.S.2d 25 [1st Dept.2008] ).
Defendant property manager's fact-based argument that it cannot be held liable under the Administrative Code is raised for the first time on appeal, and we decline to review it ( see e.g. Ta–Chotani v. Doubleclick, Inc., 276 A.D.2d 313, 714 N.Y.S.2d 34 [1st Dept.2000] ). Were we to review the argument, we would find it unavailing.