RIVAS RIVAS v. NEW YORK CITY HOUSING AUTHORITY (1999)

Order, Supreme Court, New York County (Franklin Weissberg, J.), entered October 9, 1998, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Issues of fact as to causation and notice are raised by the very weather reports defendant submitted in support of the motion.   Those reports indicate that precipitation resulting in a snow accumulation of one-half inch occurred during the morning hours immediately before plaintiff child's fall on an alleged patch of ice in defendant's playground, that the last significant precipitation occurred five to six days before the accident and resulted in a snow accumulation of seven inches, of which one inch remained three days before the accident, and that temperatures were consistently around freezing for the three-day period before the accident.   Such weather conditions could support a conclusion that plaintiff fell on preexisting ice, not fresh snow (see, Tubens v. New York City Hous. Auth., 248 A.D.2d 291, 292, 670 N.Y.S.2d 468, distinguishing Bernstein v. City of New York, 69 N.Y.2d 1020, 517 N.Y.S.2d 908, 511 N.E.2d 52), and that defendant had constructive notice of the alleged ice patch for a sufficient period of time in which to discover and remedy it (cf., Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, 622 N.Y.S.2d 496, 646 N.E.2d 798).

MEMORANDUM DECISION.