Opinion
376 CA 19–01549
08-20-2020
Susan COTTRELL and Earl Cottrell, Plaintiffs-Respondents, v. BENDERSON DEVELOPMENT COMPANY, LLC, and Benderson 85-1 Trust, Defendants-Appellants.
FITZGERALD & ROLLER, P.C., BUFFALO (DEREK J. ROLLER OF COUNSEL), FOR DEFENDANTS-APPELLANTS. CANTOR & WOLFF, BUFFALO (DAVID WOLFF OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
FITZGERALD & ROLLER, P.C., BUFFALO (DEREK J. ROLLER OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
CANTOR & WOLFF, BUFFALO (DAVID WOLFF OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Susan Cottrell (plaintiff) when she allegedly slipped in the parking lot of defendants' premises. Defendants appeal from an order denying their motion for summary judgment dismissing the second amended complaint. We affirm.
Contrary to defendants' contention, they failed to meet their initial burden of establishing that they lacked constructive notice of the alleged icy condition. Initially, we note that plaintiffs did not allege that defendants created or had actual notice of the icy condition, and thus we are concerned only with whether defendants had constructive notice (see generally Wood v. Buffalo & Fort Erie Pub. Bridge Auth. , 178 A.D.3d 1383, 1384, 116 N.Y.S.3d 459 [4th Dept. 2019] ). Defendants failed to meet their initial burden of establishing as a matter of law that "the alleged icy condition was not visible and apparent or that the ice formed so close in time to the accident that [defendants] could not reasonably have been expected to notice and remedy the condition" ( Waters v. Ciminelli Dev. Co., Inc. , 147 A.D.3d 1396, 1397, 46 N.Y.S.3d 756 [4th Dept. 2017] [internal quotation marks omitted]; see Wood , 178 A.D.3d at 1384, 116 N.Y.S.3d 459 ). Although plaintiff allegedly fell on "black ice," that fact alone does not establish as a matter of law that the ice was not visible and apparent (see Wood , 178 A.D.3d at 1384, 116 N.Y.S.3d 459 ) and, here, defendants' submissions included the deposition testimony of multiple witnesses who testified that they saw the alleged patch of ice. Furthermore, defendants' submission of evidence of "[t]he salting of the area approximately [seven] hours before plaintiff fell does not establish that the ice formed so close in time to the accident that defendant[s] could not reasonably have been expected to notice and remedy the condition" ( Conklin v. Ulm , 41 A.D.3d 1290, 1291, 838 N.Y.S.2d 306 [4th Dept. 2007] ; see generally Waters , 147 A.D.3d at 1398, 46 N.Y.S.3d 756 ).