SANTIAGO v. New York City Industrial Development Agency, Defendant. (2009)

Order, Supreme Court, New York County (Eileen Rakower, J.), entered August 15, 2008, which, to the extent appealed from, granted defendant New York City Health and Hospital Corporation's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

 Defendant failed to establish prima facie that it did not have constructive notice of the ice on the sidewalk in front of its property on which plaintiff allegedly slipped (see Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 249, 472 N.Y.S.2d 368 [1984], affd. 64 N.Y.2d 670, 485 N.Y.S.2d 252, 474 N.E.2d 612 [1984] ).   The climatological records submitted by defendant reflected that the last measurable snowfall occurred several days before the accident and that thereafter the temperature only rose above freezing, for a brief period, more than 24 hours before the accident.   The reasonable inference is that the ice formed after the temperature returned to freezing, more than 24 hours before the accident.   However, while its employees testified as to defendant's snow and ice removal practice at the time of the accident, defendant kept no records of such removal, and its witnesses could not recall when, or whether, ice or snow had been removed in the days preceding the accident.   Thus, the ice could have been there “so long that [defendant] is presumed to have seen it, or to have been negligent in failing to see it” (id. at 249-250, 472 N.Y.S.2d 368 [internal quotation marks and citation omitted];  see Wallace v. Goodstein Mgt., LLC, 48 A.D.3d 319, 851 N.Y.S.2d 516 [2008] ).   As defendant failed to meet its initial burden, the motion should have been denied regardless of the sufficiency of plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).

 Were we to find that defendant met its burden on the motion, we would find that plaintiff's submission of an expert meteorologist's opinion, based on meteorological data, that the ice condition was created at least 25 hours before the accident as a result of a thaw and refreeze cycle following the snowfall raised a triable issue of fact as to the origin of the ice patch and the length of time it was there before the accident occurred (see Gonzalez v. American Oil Co., 42 A.D.3d 253, 836 N.Y.S.2d 611 [2007] ).