Opinion
May 15, 1995
Appeal from the Supreme Court, Nassau County (Levitt, J.).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion is denied.
At about 7:15 P.M. on December 22, 1989, a very cold night, as the plaintiff Elsie B. Rizzo was leaving the Merrick Townhouse Diner (hereinafter the diner) with her husband and granddaughter, she slipped on a mound of shaved ice that had been dumped on the walkway adjoining the parking lot where, within the preceding hour, an unrefrigerated truck had made a delivery of frozen fish. Two of the diner's employees had helped to unload the fish. Mrs. Rizzo's ankle was badly fractured, requiring surgical repair. Following discovery, the defendants moved for summary judgment on the ground that they had not created the condition, nor had they had actual or constructive notice of it. The court granted the defendants' motion, and the plaintiffs appeal. We now reverse.
In the context of a motion for summary judgment, the court is obliged to draw all reasonable inferences in favor of the non-moving party, and may not pass on issues of credibility (Negri v Stop Shop, 65 N.Y.2d 625, 626; Assaf v Ropog Cab Corp., 153 A.D.2d 520, 521; Pantote Big Alpha Foods v Schefman, 121 A.D.2d 295, 297). The plaintiffs have presented ample evidence, if true, to establish that the defendants, in the person of the diner manager and one of his employees, either created the icy condition or had actual notice of it (see, e.g., Padula v Big V Supermarkets, 173 A.D.2d 1094, 1096; see also, Kelsey v Port Auth., 52 A.D.2d 801; Cameron v Bohack Co., 27 A.D.2d 362, 365). Furthermore, the record suggests that the rather large accumulation of shaved ice lay upon the walkway near where the unrefrigerated truck had delivered its cargo of frozen fish for the better part of an hour before Mrs. Rizzo slipped and fell on it (see, e.g., Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837; Negri v Stop Shop, 65 N.Y.2d 625, 626, supra). In a case such as this, the "question of whether a defendant's conduct amounts to negligence is * * * a question for the trier of fact" (Johannsdottir v Kohn, 90 A.D.2d 842). Thompson, J.P., Santucci, Friedmann and Florio, JJ., concur.