WESSELENYI v. SANTIAGO

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

Francis WESSELENYI and Carol A. Wesselenyi, Plaintiffs-Respondents, v. Luis SANTIAGO and Linda Santiago, Defendants-Appellants (Appeal No. 2.).

Decided: September 28, 2001

PRESENT:  GREEN, J.P., HURLBUTT, SCUDDER, KEHOE and GORSKI, JJ. Nicole A. Heary, for defendants-appellants. Joseph F. Gervas, for plaintiffs-respondents.

Supreme Court properly denied defendants' motion seeking summary judgment dismissing the complaint.   Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Francis Wesselenyi (plaintiff), a letter carrier, while he was attempting to deliver mail to defendants.   Plaintiffs allege that plaintiff fell on ice that had accumulated on defendants' driveway.   Defendants failed to meet their initial burden of establishing their entitlement to judgment as a matter of law (see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   There are issues of fact whether the condition of the driveway was open and obvious and whether defendants had notice thereof.   In addition, there is an issue of fact whether defendants created the condition that caused plaintiff to fall by permitting the construction of a snow hill on the front lawn and driveway, and parking their car in the driveway in such a manner that plaintiff had no alternative route to reach the mailbox other than by traversing a snow-covered area of the driveway.

Order unanimously affirmed without costs.

MEMORANDUM: