Opinion
CA 02-01836
February 7, 2003.
Appeal from an order of Supreme Court, Erie County (Notaro, J.), entered February 28, 2002, which denied defendant's motion for summary judgment dismissing the complaint.
BURGIO, KITA CURVIN, BUFFALO (WILLIAM J. KITA OF COUNSEL), FOR DEFENDANT-APPELLANT.
RODGERS COPPOLA LLP, BUFFALO (DOUGLAS S. COPPOLA OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, WISNER, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Plaintiff, a tenant in a duplex home owned by defendant, allegedly fell on a patch of ice on the driveway that she shared with defendant and sustained injuries. Plaintiff commenced this action alleging that the ice had formed after she came home at approximately 4:00 P.M. and before she fell at approximately 8:00 P.M. and that she was unable to see the ice because a light bulb in one of the two lights illuminating the driveway had burned out.
Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint. Defendant failed to establish as a matter of law that she lacked constructive notice of the patch of ice on the driveway (see generally Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-838), that she had no duty to provide reasonable illumination to the exterior of the duplex home (see Miccoli v. Kotz, 278 A.D.2d 460) and that her failure to replace the light bulb was not a proximate cause of plaintiff's injuries (see id.).