GLENNON v. WEST TAFT ROAD ASSOCIATES LLC (2023)

MEMORANDUM AND ORDER

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

Memorandum: Plaintiff commenced this action seeking damages for injuries that she sustained when she allegedly slipped and fell on ice in a parking lot owned by defendant. Defendant moved for summary judgment dismissing the complaint and now appeals from an order denying its motion. We affirm.

Even assuming, arguendo, that defendant met its initial burden of establishing that plaintiff's fall occurred during a storm in progress and that the condition that caused her to fall was caused by that storm in progress (see Witherspoon v. Tops Mkts., LLC, 128 A.D.3d 1541, 1541, 8 N.Y.S.3d 843 [4th Dept. 2015]; cf. Schult v. Pyramid Walden Co., L.P., 167 A.D.3d 1577, 1577, 89 N.Y.S.3d 510 [4th Dept. 2018]; see also Battaglia v. MDC Concourse Ctr., LLC, 175 A.D.3d 1026, 1027, 108 N.Y.S.3d 607 [4th Dept. 2019], affd 34 N.Y.3d 1164, 121 N.Y.S.3d 757, 144 N.E.3d 367 [2020]), we conclude that plaintiff raised a triable issue of fact whether her “ ‘accident was caused by a slippery condition ․ that existed prior to the storm, as opposed to precipitation from the storm in progress, and that ․ defendant had actual or constructive notice of the preexisting condition’ ” (Burniston v. Ranric Enters. Corp., 134 A.D.3d 973, 974, 21 N.Y.S.3d 694 [2d Dept. 2015]; see O'Neil v. Ric Warrensburg Assoc., LLC, 90 A.D.3d 1126, 1126-1127, 933 N.Y.S.2d 768 [3d Dept. 2011]).

Contrary to defendant's contention, we conclude that the opinion of plaintiff's expert that there was ice in the parking lot before the storm began is supported by the exhibits attached to the expert's affidavit and is not speculative, and that the affidavit also raises triable issues of fact whether defendant had actual or constructive notice of that allegedly dangerous condition (see Ayers v. Pioneer Cent. Sch. Dist., 187 A.D.3d 1625, 1626, 133 N.Y.S.3d 355 [4th Dept. 2020]; Johnson v. Pixley Dev. Corp., 169 A.D.3d 1516, 1520-1521, 93 N.Y.S.3d 780 [4th Dept. 2019]; Gervasi v. Blagojevic, 158 A.D.3d 613, 614, 70 N.Y.S.3d 585 [2d Dept. 2018]; cf. Battaglia, 175 A.D.3d at 1027-1028, 108 N.Y.S.3d 607; Gould v. 93 NYRPT, LLC, 191 A.D.3d 1452, 1453, 141 N.Y.S.3d 822 [4th Dept. 2021]). Inasmuch as the role of the courts in resolving summary judgment motions is “issue finding, not issue determination” (Potter v. Polozie, 303 A.D.2d 943, 944, 757 N.Y.S.2d 418 [4th Dept. 2003]; see generally Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957], rearg denied 3 N.Y.2d 941, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [1957]), we conclude that Supreme Court properly denied defendant's motion.