GUCK v. PALOZZI (2000)

Supreme Court, Appellate Division, Fourth Department, New York.

Deborah A. GUCK, Plaintiff-Appellant, v. Chester J. PALOZZI, Defendant-Respondent.

Decided: February 16, 2000

PRESENT: GREEN, A. P.J., PINE, PIGOTT, JR., and SCUDDER, JJ.

James J. Piampiano, Rochester, for plaintiff-appellant. Melissa A. Murphy-Petros, for defendant-respondent.

Plaintiff commenced this action seeking damages for a knee injury she sustained when she fell on an icy patch on a sidewalk located at a shopping center owned by defendant. Supreme Court erred in granting the motion of defendant for summary judgment dismissing the complaint. Although plaintiff will bear the burden at trial of proving that defendant had constructive notice of the icy patch on the sidewalk, on this motion for summary judgment defendant bore the burden of establishing entitlement to judgment as a matter of law (see, Jordan v. Musinger, 197 A.D.2d 889, 602 N.Y.S.2d 289). Defendant failed to establish lack of constructive notice as a matter of law. Consequently, the motion should have been denied, “regardless of the sufficiency of the opposing papers” (Rodgers v. Earl, 249 A.D.2d 990, 671 N.Y.S.2d 388; see also, Jordan v. Musinger, supra, at 889, 602 N.Y.S.2d 289).

Order unanimously reversed on the law without costs, motion denied and complaint reinstated.

MEMORANDUM:

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