Stalker v. Crestview Cadillac Corp. , 726 N.Y.S.2d 533 ( 2001 )

—Order unanimously affirmed without costs. Memorandum: Plaintiffs commenced this action seeking damages for personal injuries sustained by 15-year-old Alicia Stalker (plaintiff) when she slipped and fell on ice in a parking lot owned by defendants Brian Barr and James Bradshaw and leased to defendant Crestview Cadillac Corp., d/b/a Crest Cadillac-Oldsmobile. Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint. Defendants failed to meet their initial burden of establishing that plaintiff’s injuries were caused by a storm in progress (cf., Siegel v Molino, 236 AD2d 879). Defendants submitted evidence that it was snowing at the time of plaintiff’s fall and that 5 to 7 inches of snow fell that day. However, defendants also submitted the deposition testimony of plaintiff in which she testified that she fell on ice under an accumulation of approximately two feet of snow. Thus, there is an issue of fact whether plaintiffs fall was caused by snow and ice that was present prior to the date on which plaintiff fell.

Defendants also failed to meet their initial burden of establishing that they lacked constructive notice of the conditions that caused plaintiff to fall (see, Duman v City of Buffalo, 269 AD2d 848, 849). Defendants “failed to prove that the ice formed so close in time to the accident that they could not reasonably have been expected to notice and remedy the condition” (Jordan v Musinger, 197 AD2d 889, 890). Defendants’ failure to make a prima facie showing of entitlement to judgment as a matter of law “requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). (Appeal from Order of Supreme Court, Onondaga County, McCarthy, J. — Summary Judgment.) Present — Green, J. P., Hayes, Hurlbutt, Scudder and Lawton, JJ.