Amidon v. Yankee Trails, Inc.

• Decision Date: 14 April 2005
• Docket Number: 96879.
• Citation: 17 A.D.3d 835,794 N.Y.S.2d 132,2005 NY Slip Op 02925
• Parties: MARJORIE AMIDON, Appellant, v. YANKEE TRAILS, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

17 A.D.3d 835

794 N.Y.S.2d 132

2005 NY Slip Op 02925

MARJORIE AMIDON, Appellant, v. YANKEE TRAILS, INC., Respondent.

96879.

Appellate Division of the Supreme Court of the State of New York, Third Department.

April 14, 2005.

Appeal from an order of the Supreme Court (Hummel, J.), entered August 4, 2004 in Rensselaer County, which granted defendant's motion for summary judgment dismissing the complaint.

CARPINELLO, J.

At around 6:15 P.M. on April 5, 2002, plaintiff boarded a bus at defendant's Rensselaer County facility bound for an all-night trip to a Connecticut casino. The bus returned the next morning at approximately 5:45 A.M. After disembarking, plaintiff slipped and fell on ice in the parking lot as she was walking to her car. Thereafter, she commenced this negligence action against defendant to recover damages for her injuries, alleging that the ice was a dangerous condition about which defendant knew or should have known. Following joinder of issue, defendant moved for summary judgment dismissing the complaint contending that it did not have actual or constructive notice of the allegedly dangerous condition in its parking lot. Supreme Court granted defendant's motion, prompting this appeal.

To prevail on its motion, defendant was required "to establish as a matter of law that [it] maintained [its] property in question in a reasonably safe condition and that [it] neither created the allegedly dangerous condition . . . nor had actual or constructive notice thereof" (Richardson v Rotterdam Sq. Mall, 289 AD2d 679, 679 [2001]; see Mokszki v Pratt, 13 AD3d 709, 710 [2004]). Based on our review of the record, which is to be viewed in the light most favorable to plaintiff (see Rosati v Kohl's Dept. Stores, 1 AD3d 674, 674 [2003]), we disagree with Supreme Court's conclusion that defendant satisfied its burden.

In support of its motion for summary judgment, defendant presented the testimony of its director of operations, John Tobin, who stated that his responsibilities included maintaining the parking lot in a safe condition, including plowing, sanding and salting the lot as needed. Although Tobin stated that he generally checks the weather forecast every evening during the winter months, he did not specifically state that he had checked the weather forecast on the evening of April 5, 2002, and, in fact, at one point specifically stated that he had not done so. Indeed, Tobin admitted that he had no knowledge of the condition of the parking lot at the time of plaintiff's fall on the morning of April 6, 2002. According to Tobin, defendant's service personnel supervisor was charged with evaluating the condition of the parking lot during the overnight hours and usually informed Tobin when plowing,...