BAILLET v. AUERBACH (2000)

In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated December 21, 1999, as denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the defendants' motion for summary judgment.   After the defendants made out a prima facie case for summary judgment, the plaintiffs raised a triable issue of fact as to whether the defendants had actual or constructive notice of the icy condition (see, Goldman v. Waldbaum, Inc., 248 A.D.2d 436, 669 N.Y.S.2d 669;  Bordonaro v. Garcia, 242 A.D.2d 256, 661 N.Y.S.2d 544;  Arcuri v. Vitolo, 196 A.D.2d 519, 601 N.Y.S.2d 173), and whether the icy condition had existed for a “sufficient length of time prior to the accident to permit defendant[s'] employees to discover and remedy it” (Bykofsky v. Waldbaum's Supermarkets, 210 A.D.2d 280, 281, 619 N.Y.S.2d 760;  see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774).

Furthermore, a triable issue of fact exists as to whether the defendants created the icy condition when snow shovelled by their employees melted and refroze (see, Grizzaffi v. Paparodero Holding Corp., 261 A.D.2d 437, 690 N.Y.S.2d 93;  Roca v. Gerardi, 243 A.D.2d 616, 663 N.Y.S.2d 230;  Kay v. Flying Goose, 203 A.D.2d 332, 610 N.Y.S.2d 70).

MEMORANDUM BY THE COURT.