WILSON v. Mark E. Goldberg Prosthetic and Orthotic Labs, Ltd., Appellant. (2002)

In an action to recover damages for personal injuries, the defendant Mark E. Goldberg Prosthetic and Orthotic Labs, Ltd., appeals from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated August 9, 2001, as denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against it.

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

The plaintiff was allegedly injured when she slipped and fell on a patch of ice in a parking lot on her way to work one morning.   She subsequently commenced this action against, among others, the appellant, which was responsible for maintenance of the parking lot.   The defendants moved for summary judgment and the Supreme Court, inter alia, denied that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the appellant.

The appellant contends that it did not have a reasonable opportunity after the cessation of precipitation the previous night to discover and remedy the condition of the parking lot.   However, there is some evidence that the parking lot was plowed prior to the plaintiff's fall and, consequently, there is an issue of fact as to whether the appellant had an opportunity to take action (see Kyung Sook Park v. Caesar Chemists, 245 A.D.2d 425, 426-427, 666 N.Y.S.2d 679).   Further, if the parking lot was plowed, there is an issue of fact as to whether the snow-removal services were negligently performed (see Boskey v. Gazza Props., 248 A.D.2d 344, 346, 669 N.Y.S.2d 624).   Consequently, the Supreme Court properly denied that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the appellant.