PANZARELLA v. MULTIPLE PARKING SERVICES INC

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

Dorothy M. PANZARELLA, Respondent, v. MULTIPLE PARKING SERVICES, INC., Appellant.  (Appeal No. 1.)

Decided: April 25, 1997

Before PINE, J.P., and LAWTON, CALLAHAN, DOERR and FALLON, JJ. Williams and Williams by Robert D. Leary, Buffalo, for Appellant. Davis, Augello, Matelliano & Gersten, LLP by William Gersten, Buffalo, for Respondent.

 We reject the contention of defendant that it had no actual or constructive notice of a dangerous icy condition on the parking lot where plaintiff fell and that it was not afforded a reasonable time after a temperature fluctuation that created the icy condition to exercise due care to correct the situation.   The evidence establishes that the ice on the parking lot was “visible and apparent” and existed “for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it” (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774).   According to the testimony at trial, between three and nine hours passed from the time the ice formed until plaintiff's accident, and defendant's maintenance worker did not place rock salt on the parking lot until 45 minutes before plaintiff's accident.   Thus, we conclude that the verdict is not against the weight of the evidence.

 Supreme Court properly refused to charge the jury on implied assumption of the risk.   The evidence at trial establishes that, at the time of her fall, plaintiff was not aware of the ice (see, Pisciotta v. Parisi, 155 A.D.2d 422, 547 N.Y.S.2d 352;  Farina v. A.R.A. Servs., 151 A.D.2d 456, 542 N.Y.S.2d 246).

 Finally, the jury award of $160,000 for future pain and suffering does not deviate materially from what would be reasonable compensation (see, CPLR 5501[c];  see also, Kotopoulos v. Nathan Hale Gardens, 235 A.D.2d 276, 652 N.Y.S.2d 283 ).   Plaintiff sustained a fractured distal radius and was forced to undergo two surgical procedures on her left wrist.   She has permanent measurable deficiencies in her grip and pinch strength as a result.   There are scars on her wrist, and her left arm has atrophied so that it is smaller than her right arm.   Her wrist is permanently deformed and radiates inward.   She will continue to suffer pain and discomfort as a result of weather and hand usage.

Judgment unanimously affirmed without costs.

MEMORANDUM: