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Tonkin v. Widewaters Lakewood Village Center Co.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


March 19, 2010

KRYSTAL TONKIN ET AL., RESPONDENTS,
v.
WIDEWATERS LAKEWOOD VILLAGE CENTER COMPANY ET AL., APPELLANTS.

Appeal from an order of the Supreme Court, Chautauqua County (James H. Dillon, J.), entered July 1, 2009 in a personal injury action. The order denied the motion of defendants for summary judgment.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, April 28, 2010

It is hereby ordered that the order so appealed from is unanimously affirmed with costs.

Memorandum

Plaintiffs commenced this action seeking damages for injuries sustained by Krystal Tonkin (plaintiff) when she slipped and fell on snow-covered ice in a parking lot owned by defendants. Supreme Court properly denied defendants' motion seeking summary judgment dismissing the amended complaint. Defendants' own submissions raise a triable issue of fact whether plaintiff fell "as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter" (Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]), or whether she fell as the result of ice that had accumulated prior to the storm (see Stalker v Crestview Cadillac Corp., 284 AD2d 977 [2001]). In addition, defendants failed to meet their initial burden of establishing that they lacked constructive notice of the icy condition (see Walter v United Parcel Serv., Inc., 56 AD3d 1187 [2008]; Simmons v Oswego County Sav. Bank, 306 AD2d 825 [2003]).

Present---Centra, J.P., Fahey, Carni, Green and Pine, JJ.

20100319

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