In Sikora v Earth Leasing Prop. Ltd. Liab. Co., 2015 NY Slip Op 07918 (App. Div. 1st Dept. Oct. 29, 2015) – a personal injury ice slip/fall case – the Appellate Division, First Department affirmed a lower court decision denying defendant’s motion for summary judgment.
The court explained:
Defendant failed to establish entitlement to judgment as a matter of law in this action where plaintiff was injured when she slipped and fell on ice on the sidewalk adjacent to defendant’s building. The climatological records submitted by defendant noted that the temperature was above freezing for 26 hours prior to plaintiff’s fall. However, for the two weeks prior to the accident the temperature was at, or below, freezing. As such, defendant did not show that the allegedly icy condition could not have been present at the time of plaintiff’s fall … Defendant also failed to demonstrate that it did not have notice of the icy condition. Defendant did not present any evidence as to when the sidewalk was last inspected prior to plaintiff’s fall, or when snow or ice was last removed. Nor did it provide any written record of snow or ice removal.
Even were we to find that defendant met its initial burden on the motion, plaintiff’s description of the ice taking up almost all of the sidewalk provided at least some indication that the condition had existed for some time, raising a triable issue as to constructive notice.
As to the issue of whether the icy condition was present at the time of plaintiff’s fall, the court distinguished the present situation from those in Daly v. Janel Tower L.P., 89 AD3d 408, 409 (1st Dept. 2011), in which the court affirmed the grant of summary judgment to defendants where “the climatological reports showed that it last snowed more than one week prior to plaintiff’s fall and that during the three-day period prior to plaintiff’s fall, temperatures remained well above freezing” and therefore that “the purported icy condition, consisting of a two-by-two-foot square, would not have formed under those circumstances.”