CONFLICTING EVIDENCE ABOUT THE ABILITY TO SEE ICE ON THE PARKING LOT RAISED A TRIABLE QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE CONDITION WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined defendants in this ice slip and fall case did not eliminate questions of fact about whether they had constructive notice of the icy condition:

Supreme Court found that plaintiffs’ testimony, submitted by defendants, showed that the allegedly dangerous condition “was neither visible nor had it existed for a significant period of time,” and “plaintiffs have not submitted any evidence to prove . . . constructive notice.” Although [plaintiff] testified that the parking lot appeared wet, not icy, when viewed from her husband’s truck, she also stated that she saw the ice once she had fallen; further, the affidavit of a witness states that “[t]he ice in the parking lot that morning was clearly visible.” Thus, the record contains conflicting accounts as to the visibility of the ice. “When considering a summary judgment motion, courts must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations” … . Applying this standard, we find a triable issue of fact as to constructive notice. Carpenter v Nigro Cos., Inc., 2022 NY Slip Op 01857, Third Dept 3-17-22

Practice Point: Where there is conflicting evidence of constructive notice of a dangerous condition, here whether the ice which caused plaintiff’s slip and fall was visible, summary judgment is not appropriate.