Sikora v Earth Leasing Prop. Ltd. Liab. Co.

Sikora v Earth Leasing Prop. Ltd. Liab. Co. 2015 NY Slip Op 07918 Decided on October 29, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 29, 2015
Gonzalez, P.J., Friedman, Gische, Kapnick, JJ.
16021 112279/11

[*1] Maria E. Sikora, Plaintiff-Respondent,

v

Earth Leasing Property Limited Liability Company, Defendant-Appellant,

Weiner, Millo, Morgan & Bonanno, LLC, New York (Benjamin A. Jacobson of counsel), for appellant.

Bader, Yakaitis & Nonnenmacher, LLP, New York (Jesse M. Young of counsel), for respondent.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered October 15, 2014, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant failed to establish entitlement to judgment as a matter of law in this action where plaintiff was injured when she slipped and fell on ice on the sidewalk adjacent to defendant's building. The climatological records submitted by defendant noted that the temperature was above freezing for 26 hours prior to plaintiff's fall. However, for the two weeks prior to the accident the temperature was at, or below, freezing. As such, defendant did not show that the allegedly icy condition could not have been present at the time of plaintiff's fall (see Ortiz v New York City Hous. Auth., 120 AD3d 1059 [1st Dept 2014]; cf. Daly v Janel Tower L.P., 89 AD3d 408, 409 [1st Dep 2011] [affirming grant of summary judgment to defendants where "the climatological reports showed. . . that during the three-day period prior to plaintiff's fall, temperatures remained well above freezing."]). Defendant also failed to demonstrate that it did not have notice of the icy condition. Defendant did not present any evidence as to when the sidewalk was last inspected prior to plaintiff's fall, or when snow or ice was last removed (see Rodriguez v Bronx Zoo Rest., Inc., 110 AD3d 412 [1st Dept 2013]). Nor did it provide any written record of snow or ice removal (see Santiago v New York City Health & Hosps. Corp., 66 AD3d 435 [1st Dept 2009]).

Even were we to find that defendant met its initial burden on the motion, plaintiff's description of the ice taking up almost all of the sidewalk provided at least some indication that the condition had existed for some time, raising a triable issue

as to constructive notice (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 29, 2015

CLERK