Brinson v Geneva Hous. Auth.

Brinson v Geneva Hous. Auth. 2007 NY Slip Op 08650 [45 AD3d 1397] November 9, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Rosa Brinson, Appellant, v Geneva Housing Authority, Respondent.

—[*1] The Barnes Firm, P.C., Rochester (Elizabeth C. Clarke of counsel), for plaintiff-appellant.

Rehfuss, Liguori & Associates, P.C., Albany (John W. Liguori of counsel), for defendant-respondent.

Appeal from an amended order of the Supreme Court, Ontario County (Craig J. Doran, A.J.), entered January 19, 2007 in a personal injury action. The amended order granted defendant's motion for summary judgment dismissing the complaint.

It is hereby ordered that the amended order so appealed from be and the same hereby is unanimously modified on the law by denying the motion in part and reinstating the complaint insofar as the complaint, as amplified by the bill of particulars, alleges that defendant had constructive notice of the icy condition and as modified the amended order is affirmed without costs.

Memorandum: Plaintiff commenced this negligence action seeking damages for injuries she sustained when she slipped and fell in the parking lot of an apartment complex owned by defendant. Supreme Court erred in granting that part of defendant's motion for summary judgment dismissing the complaint insofar as the complaint, as amplified by the bill of particulars, alleges that defendant had constructive notice of the icy condition on which plaintiff fell, and we therefore modify the amended order accordingly. Indeed, defendant's submissions in support of the motion raise triable issues of fact whether there was a storm in progress at the time of plaintiff's fall (see Cappola v Michael's Banquet Facility, 8 AD3d 1100 [2004]) and whether the ice formed so close in time to the accident that defendant could not reasonably have been expected to notice and remedy the condition after cessation of the storm (see Kimpland v Camillus Mall Assoc., L.P., 37 AD3d 1128 [2007]; Santerre v Golub Corp., 11 AD3d 945 [2004]; Duman v City of Buffalo, 269 AD2d 848 [2000]; see also Williams v Scruggs Community Health Care Ctr., 255 AD2d 982 [1998]). Present—Scudder, P.J., Hurlbutt, Smith, Fahey and Pine, JJ.