PUGLIESE v. UTICA NATIONAL INSURANCE GROUP INC

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

Vincenza C. PUGLIESE, Plaintiff-Respondent, v. UTICA NATIONAL INSURANCE GROUP, INC., Defendant-Appellant.

Decided: June 14, 2002

Present:  PIGOTT, Jr., P.J., GREEN, HURLBUTT, SCUDDER, and BURNS, JJ. Hancock & Estabrook, LLP, Syracuse (Janet D. Callahan of Counsel), for Defendant-Appellant. George F. Aney, Herkimer, D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Plaintiff-Respondent.

 Supreme Court properly denied defendant's motion seeking summary judgment dismissing the complaint.   Plaintiff allegedly slipped on ice and fell on the curb in front of defendant's building.   We conclude that defendant failed to meet its initial burden of establishing that it lacked actual notice of an icy condition (see Wright v. Rite-Aid of NY, 249 A.D.2d 931, 931, 672 N.Y.S.2d 548).   In support of its motion, defendant submitted the deposition testimony of its facilities supervisor stating that the area from the building up to the curb, but not including the curb, was kept clear of snow and ice by means of electric mats under the concrete.   The facilities supervisor testified that he was unaware whether the system kept the curb area free of ice and that, although he was ultimately responsible for maintaining the area, there was no policy with respect to checking the area for ice except to “keep ahead of it” (cf.  Bernardo v. P. & J. Edwards, Inc., 246 A.D.2d 950, 950-951, 667 N.Y.S.2d 851).   The facilities supervisor further testified that there was no procedure pursuant to which he would receive reports of icy conditions (cf.  Wimbush v. City of Albany, 285 A.D.2d 706, 707, 727 N.Y.S.2d 745).

 Defendant met its initial burden of establishing that it lacked constructive notice of the icy condition by submitting the deposition testimony of plaintiff, wherein she stated that she did not observe ice when she walked to and from the building.   However, plaintiff raised an issue of fact whether ice in the area of the curb was visible and apparent by her testimony that she felt ice when she fell, and that the area, which was concrete, “looked like it was marble” and “it was clear” (see Wright, 249 A.D.2d at 931-932, 672 N.Y.S.2d 548).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: