Opinion
CA 02-02063
June 13, 2003.
Appeal from an order of Supreme Court, Oswego County (Nicholson, J.), entered June 10, 2002, which granted defendant's motion for summary judgment and dismissed the complaint.
SMITH, SOVIK, KENDRICK SUGNET, P.C., SYRACUSE (MICHAEL P. RINGWOOD OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
BOND, SCHOENECK KING, PLLC, SYRACUSE (DONALD S. DI BENEDETTO OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., HURLBUTT, SCUDDER, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.
Memorandum:
Plaintiffs commenced this action seeking damages for personal injuries sustained by Patricia A. Simmons (plaintiff) when she slipped and fell on snow-covered ice, approximately one-third-inch to one-inch thick, in a parking lot owned by defendant. Defendant failed to meet its initial burden of establishing its entitlement to judgment as a matter of law on its motion for summary judgment dismissing the complaint, and thus Supreme Court erred in granting defendant's motion ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Defendant failed to establish that it lacked constructive notice of the icy condition, i.e., that "the ice formed so close in time to the accident that [defendant] could not reasonably have been expected to notice and remedy the condition" ( Jordan v. Musinger, 197 A.D.2d 889, 890; see Duman v. City of Buffalo, 269 A.D.2d 848, 849). In addition, defendant failed to submit evidence to support its conclusory assertion that plaintiff's injuries were caused by the light snow falling at the time plaintiff fell rather than "ice that was present prior to the date on which plaintiff fell" ( Stalker v Crestview Cadillac Corp., 284 A.D.2d 977, 978). The failure of defendant to meet its initial burden requires denial of the motion regardless of the sufficiency of plaintiffs' opposing papers ( see Perrone v. Ilion Main St. Corp., 254 A.D.2d 784, 785; Jordan, 197 A.D.2d at 889). We therefore reverse the order, deny defendant's motion and