GEBO v. JEFFERSON LEWIS BOARD OF COOPERATIVE EDUCATION SERVICES

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

Yvonne GEBO and Steven M. Gebo, Respondents, v. JEFFERSON LEWIS BOARD OF COOPERATIVE EDUCATION SERVICES, Appellant.

Decided: March 13, 1998

Before GREEN, J.P., and PINE, LAWTON, HAYES and WISNER, JJ.

Plaintiffs commenced this action seeking damages for injuries sustained by Yvonne Gebo (plaintiff) when she slipped and fell on an allegedly icy sidewalk on defendant's premises.   Plaintiffs seek to hold defendant liable on the theory that defendant had constructive notice of the allegedly icy condition.   Defendant denied the material allegations of the complaint and thereafter moved for summary judgment dismissing the complaint.

 Supreme Court properly denied the motion because defendant failed to meet its initial burden of proving lack of constructive notice (see, Jordan v. Musinger, 197 A.D.2d 889, 602 N.Y.S.2d 289;  see generally, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-838, 501 N.Y.S.2d 646, 492 N.E.2d 774).  “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).  Defendant's proof did not establish that the allegedly icy condition was not visible and apparent or that it had not existed for a sufficient length of time before plaintiff's accident to permit defendant's employees to discover and remedy it (see, Nikolic v. Valley Stream Cent. High School Dist., 240 A.D.2d 551, 658 N.Y.S.2d 665;  Jordan v. Musinger, supra, at 890, 602 N.Y.S.2d 289).

Order unanimously affirmed without costs.

MEMORANDUM: