WILLIAMS v. PATRICK (2006)

Plaintiff commenced this action seeking damages for injuries sustained when she slipped and fell on the sidewalk in front of defendants' premises.   We agree with plaintiff that Supreme Court erred in granting defendants' motion for summary judgment dismissing the complaint.   Defendants failed to meet their initial burden of establishing their entitlement to judgment as a matter of law and, in any event, plaintiff raised triable issues of fact to defeat the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   In particular, there are triable issues of fact concerning whether defendants owned the sidewalk and, if not, whether their special use of the sidewalk in maintaining a canopy over it brings them within the exception to the general rule of nonliability for owners of property abutting a public sidewalk (see Hunter v. City of New York, 23 A.D.3d 223, 224, 806 N.Y.S.2d 4;  Deans v. City of Buffalo, 181 A.D.2d 1015, 581 N.Y.S.2d 952;  Du Pont v. Town of Horseheads, 163 A.D.2d 643, 645-646, 558 N.Y.S.2d 275).   In addition, there is a triable issue of fact concerning whether defendants may be held liable based on their alleged assumption of a duty of care with respect to the sidewalk, which likewise would bring them under an exception to that general rule of nonliability (see generally Genen v. Metro-North Commuter R.R., 261 A.D.2d 211, 214-215, 690 N.Y.S.2d 213;   Jiuz v. City of New York, 244 A.D.2d 298, 664 N.Y.S.2d 303;  Keane v. City of New York, 208 A.D.2d 457, 617 N.Y.S.2d 323).   There also are triable issues of fact concerning whether a storm was in progress at or near the time of plaintiff's accident (see Sanders v. Wal-Mart Stores, Inc., 9 A.D.3d 595, 780 N.Y.S.2d 417;  LaDue v. G & A Group, 241 A.D.2d 791, 792, 660 N.Y.S.2d 215) and whether plaintiff slipped on ice that had accumulated prior to the most recent storm (see Swimm v. Bratt, 15 A.D.3d 976, 789 N.Y.S.2d 792;  Pacelli v. Pinsley, 267 A.D.2d 706, 707-708, 699 N.Y.S.2d 530).   Additionally, there are triable issues of fact concerning whether defendants affirmatively created or exacerbated the icy condition (see Prenderville v. International Serv. Sys., Inc., 10 A.D.3d 334, 338, 781 N.Y.S.2d 110;   Jimenez v. Cummings, 226 A.D.2d 112, 640 N.Y.S.2d 61) or had either actual or constructive notice of it (see Sweeney v. Lopez, 16 A.D.3d 1174, 1175, 791 N.Y.S.2d 237;   Rousseau v. Gugliuzza, 285 A.D.2d 993, 994, 727 N.Y.S.2d 570).

Finally, we conclude that defendants did not meet their initial burden of establishing that the lighting conditions in the vicinity were adequate or that plaintiff's accident was not caused by the alleged lack of adequate lighting (see Swerdlow v. WSK Props. Corp., 5 A.D.3d 587, 588, 772 N.Y.S.2d 864;  see also Green v. New York City Hous. Auth., 7 A.D.3d 287, 288, 776 N.Y.S.2d 52), and plaintiff in any event raised triable issues of fact with respect to the lighting (see Rigney v. Healy, 271 A.D.2d 426, 706 N.Y.S.2d 886).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.

MEMORANDUM: