GRIZZAFFI v. Daniel A. Fernandez d/b/a Danny's Pizzeria, defendant third-party defendant-appellant. (1999)

Supreme Court, Appellate Division, Second Department, New York.

Josephine GRIZZAFFI, et al., plaintiffs-respondents, v. PAPARODERO HOLDING CORP., defendant third-party plaintiff-respondent, Daniel A. Fernandez d/b/a Danny's Pizzeria, defendant third-party defendant-appellant.

Decided: May 10, 1999

GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, ANITA R. FLORIO and HOWARD MILLER, JJ.

Harms, Della Jacono & Finneran (John M. Denby, East Setauket, N.Y., of counsel), for defendant third-party defendant-appellant. Bank, Sheer, Servino & Seymour, White Plains, N.Y. (Daniel A. Seymour of counsel), for plaintiffs-respondents.

In an action to recover damages for personal injuries, etc., the defendant third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Donovan, J.), entered June 4, 1998, as denied his motion for summary judgment dismissing the complaint, third-party complaint, and all cross claims insofar as asserted against him.

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

Triable issues of fact exist, inter alia, as to whether the ice on which the plaintiff Josephine Grizzaffi slipped and fell was formed when the pile of snow created by the appellant melted and refroze (see, Roca v. Gerardi, 243 A.D.2d 616, 663 N.Y.S.2d 230).

MEMORANDUM BY THE COURT.

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