WHITLEY v. BUFFALO MUNICIPAL HOUSING AUTHORITY (2006)

 Plaintiff commenced this negligence action seeking damages for injuries she sustained when she slipped and fell on snow and slush on defendant's sidewalk.   According to plaintiff, defendant had actual or constructive notice of the dangerous condition.   In support of its motion for summary judgment, defendant contended, inter alia, that it lacked such notice.   We conclude that Supreme Court properly denied the motion because defendant failed to meet its initial burden of establishing that it lacked actual or constructive notice of the condition at issue (see Chrisler v. Spencer, 31 A.D.3d 1124, 817 N.Y.S.2d 835;  Santerre v. Golub Corp., 11 A.D.3d 945, 947, 782 N.Y.S.2d 891).   Although defendant established that plaintiff did not report the condition to it, defendant did not establish that no one else had reported the condition and therefore failed to establish that it lacked actual notice as a matter of law.   With respect to constructive notice, defendant failed to establish that the condition did not “exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it” (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  see Bailey v. Curry, 1 A.D.3d 1059, 1059-1060, 767 N.Y.S.2d 724;  Perrone v. Ilion Main St. Corp., 254 A.D.2d 784, 678 N.Y.S.2d 190).   The contention of defendant that its actions were reasonable is raised for the first time in its reply papers, and we therefore do not consider it (see Lewis v. Boyce, 31 A.D.3d 395, 396, 817 N.Y.S.2d 659;  Martin v. New York Hosp., 295 A.D.2d 485, 486, 745 N.Y.S.2d 32).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: