SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

995 

CA 12-00543 

PRESENT: FAHEY, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ. 

 

 

DONALD C. QUIGLEY, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

SHERYN BURNETTE, INDIVIDUALLY AND DOING 

BUSINESS AS COUNTRY CORNER STORE, 

DEFENDANT-APPELLANT. 

 

WILLIAMSON, CLUNE & STEVENS, ITHACA (ALLAN C. VANDEMARK OF COUNSEL),

FOR DEFENDANT-APPELLANT. 

DEVALK, POWER, LAIR & WARNER, P.C., SODUS (RICHARD L. DEVALK OF

COUNSEL), FOR PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Wayne County (John B.

Nesbitt, A.J.), entered June 27, 2011. The order denied the motion of

defendant for summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting the motion in part and

dismissing the complaint to the extent that the complaint, as

amplified by the bill of particulars, alleges that defendant had

actual notice of the allegedly dangerous condition and as modified the

order is affirmed without costs. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries that he sustained when he fell near the gasoline pumps in the

parking lot of defendant’s store. Plaintiff alleges that he slipped

and fell on an icy puddle that was formed by water running off the

canopy above the fuel pumps onto the pavement below. Defendant moved

for summary judgment dismissing the complaint on the grounds that she

did not have actual or constructive notice of the allegedly dangerous

condition or create the condition. We conclude that Supreme Court

erred in denying the motion with respect to the allegation that

defendant had actual notice of the allegedly dangerous condition but

otherwise properly denied the motion. We therefore modify the order

accordingly. 

Defendant met her initial burden with respect to actual notice by

submitting evidence that she was not aware of the allegedly dangerous

condition, and plaintiff failed to raise a triable issue of fact in

opposition (see Robertson v Masiello, 21 AD3d 1259, 1260). Defendant

failed to meet her initial burden with respect to constructive notice,

however, and thus the court properly denied her motion to that extent
-2- 995 

CA 12-00543 

(see generally Monroe v New York State Elec. & Gas Corp., 186 AD2d

1019, 1020). In support of her motion, defendant submitted, inter

alia, the deposition testimony of an employee who stated that there

were no inspection procedures in place at the time of the accident and

that he could not recall whether there had been any maintenance of the

parking lot that day. “Thus, [d]efendant submitted no evidence to

establish that the ice formed so close in time to the accident that

[she] could not reasonably have been expected to notice and remedy the

condition” (Rogers v Niagara Falls Bridge Commn., 79 AD3d 1637, 1638

[internal quotation marks omitted]; see Kimpland v Camillus Mall

Assoc., L.P., 37 AD3d 1128, 1129). Even assuming, arguendo, that

defendant met her initial burden, we conclude that plaintiff raised a

triable issue of fact sufficient to defeat that part of the motion

(see generally Zuckerman v City of New York, 49 NY2d 557, 562). 

Finally, we conclude that defendant failed to meet her initial burden

of establishing that she did not create the allegedly dangerous

condition (see Kimpland, 37 AD3d at 1128), and thus the court also

properly denied her motion to that extent. 

Entered: November 9, 2012 Frances E. Cafarell

Clerk of the Court