Opinion
No. CA 09-02176.
March 19, 2010.
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.
BRIAN P. FITZGERALD, P.C., BUFFALO (BRIAN P. FITZGERALD OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
CAMPBELL SHELTON LLP, EDEN (ERIC M. SHELTON OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
Present: Centra, J.P., Fahey, Carni, Green and Pine, JJ.
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), 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). 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; Simmons v Oswego County Sav. Bank, 306 AD2d 825).