Opinion
CA 05-00448.
September 30, 2005.
Appeal from an order of the Supreme Court, Erie County (David J. Mahoney, J.), entered October 29, 2004 in a personal injury action. The order denied defendants' motion for summary judgment dismissing the complaint.
HURWITZ FINE, P.C., BUFFALO (DONNA L. BURDEN OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
BROWN CHIARI, LLP, LANCASTER (THERESA M. WALSH OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present: Pigott, Jr., P.J., Green, Kehoe, Martoche and Lawton, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the complaint, as amplified by the bill of particulars, insofar as it alleges that defendants had actual or constructive notice of the allegedly dangerous condition and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained when she allegedly slipped and fell on ice outside defendant The Steer, a restaurant. We conclude that Supreme Court should have granted that part of defendants' motion seeking summary judgment dismissing the complaint insofar as plaintiff alleges that defendants had actual or constructive notice of the allegedly dangerous condition ( see Quinn v. Holiday Health Fitness Ctrs. of N.Y., Inc., 15 AD3d 857; Anthony v. Wegmans Food Mkts., Inc., 11 AD3d 953, 954; Goldman v. Waldbaum, Inc., 297 AD2d 277; see generally Gordon v. American Museum of Natural History, 67 NY2d 836), and we therefore modify the order accordingly. We further conclude, however, that the court properly denied that part of the motion seeking summary judgment dismissing the complaint insofar as plaintiff alleges that defendants created the dangerous condition, i.e., "by piling snow that melted, ran onto the [area where plaintiff fell], and thereafter froze" ( Feeney v. Benderson Dev. Co., 255 AD2d 965, 966; see Rotella v. Wegmans Food Mkts., 289 AD2d 1014; Calabrese v. Geneva Hous. Auth., 284 AD2d 954).