BRINSON v. GENEVA HOUSING AUTHORITY (2007)

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 A.D.3d 1100, 778 N.Y.S.2d 645) 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 A.D.3d 1128, 829 N.Y.S.2d 354;  Santerre v. Golub Corp., 11 A.D.3d 945, 782 N.Y.S.2d 891;  Duman v. City of Buffalo, 269 A.D.2d 848, 703 N.Y.S.2d 800;  see also Williams v. Scruggs Community Health Care Ctr., 255 A.D.2d 982, 680 N.Y.S.2d 771).

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: