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Baillet v. Auerbach

Appellate Division of the Supreme Court of New York, Second Department
Nov 20, 2000
277 A.D.2d 335 (N.Y. App. Div. 2000)

Opinion

Argued October 20, 2000.

November 20, 2000.

In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated December 21, 1999, as denied their motion for summary judgment dismissing the complaint.

Agoglia, Fassberg, Holland Crowe, P.C., Mineola, N.Y. (Patrick J. Crowe of counsel), for appellants.

Philip F. Alba, P.C., West Islip, N.Y. (Linda Alba Masin of counsel), for respondents.

Before: CORNELIUS J. O'BRIEN, J.P., WILLIAM C. THOMPSON, HOWARD MILLER, ROBERT W. SCHMIDT, JJ.


DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the defendants' motion for summary judgment. After the defendants made out a prima facie case for summary judgment, the plaintiffs raised a triable issue of fact as to whether the defendants had actual or constructive notice of the icy condition (see, Goldman v. Waldbaum, Inc., 248 A.D.2d 436; Bordonaro v. Garcia, 242 A.D.2d 256; Arcuri v. Vitolo, 196 A.D.2d 519), and whether the icy condition had existed for a "sufficient length of time prior to the accident to permit defendant[s'] employees to discover and remedy it" (Bykofsky v. Waldbaum's Supermarkets, 210 A.D.2d 280, 281; see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836).

Furthermore, a triable issue of fact exists as to whether the defendants created the icy condition when snow shovelled by their employees melted and refroze (see, Grizzaffi v. Paparodero Holding Corp., 261 A.D.2d 437; Roca v. Gerardi, 243 A.D.2d 616; Kay v. Flying Goose, 203 A.D.2d 332).


Summaries of

Baillet v. Auerbach

Appellate Division of the Supreme Court of New York, Second Department
Nov 20, 2000
277 A.D.2d 335 (N.Y. App. Div. 2000)
Case details for

Baillet v. Auerbach

Case Details

Full title:DOUGLAS BAILLET, ET AL., RESPONDENTS, v. HARVEY AUERBACH, ETC., ET AL.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 20, 2000

Citations

277 A.D.2d 335 (N.Y. App. Div. 2000)
717 N.Y.S.2d 215

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