                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 9, 2015                      519732
________________________________

DEAN MINUTOLO,
                    Appellant,
     v                                      MEMORANDUM AND ORDER

COUNTY OF BROOME et al.,
                    Respondents.
________________________________


Calendar Date:   June 2, 2015

Before:   Peters, P.J., Lahtinen, Garry and Lynch, JJ.

                             __________


      Finkelstein & Partners, LLP, Newburgh (Victoria L. Lightcap
of counsel), for appellant.

      Robert G. Behnke, County Attorney, Binghamton, for
respondents.

                             __________


Lynch, J.

      Appeal from a judgment of the Supreme Court (Lebous, J.),
entered December 12, 2013 in Broome County, upon a verdict
rendered in favor of defendants.

      Plaintiff was injured at the Broome County Veterans
Memorial Arena (hereinafter the arena) in the City of Binghamton,
Broome County when he slipped and fell into a recessed paved area
behind the arena described as a "pit." He maintains that he
slipped on a grease spill alongside the pit where a railing had
been removed. In this action, plaintiff alleges that defendants
negligently maintained the premises by failing to clean up the
grease spill and for not having a protective railing in place.
Following joinder of issue, Supreme Court partially granted
defendants' motion for summary judgment by dismissing that aspect
                                -2-                519732

of the claim based on the railing. A jury thereafter returned a
verdict in defendants' favor, finding that there was not a
slippery substance in the area where plaintiff fell. Plaintiff
appeals.1

      We are not persuaded by plaintiff's contention that the
verdict was against the weight of the evidence. A verdict will
not be overturned on this basis "unless the evidence so
preponderated in favor of the movant that the verdict could not
have been reached on any fair interpretation of the evidence"
(Killon v Parrotta, 98 AD3d 828, 829 [2012] [internal quotation
marks, brackets and citations omitted]). In addressing this
contention, we view the evidence most favorably to defendant, as
the nonmoving party, with considered deference to the jury's
assessment of witness credibility and interpretation of the
evidence (see id.). The record reveals competing descriptions of
the pavement condition. Both plaintiff and his then fiancé, Amy
Minutolo, maintained there was a grease spot, which they pointed
out to defendants' security guard, Luther Taylor, when he
responded to the scene. Minutolo also testified that a passerby,
Lorraine Ostrowsky, pointed to grease spots and said plaintiff
slipped on those spots. Taylor, however, testified that when he
first responded, no one mentioned a grease spot. Later that
evening, Taylor explained that plaintiff and Minutolo returned
and reported that plaintiff had slipped on grease. At that
point, Taylor and his supervisor revisited the scene, and found
some "dry oil" on the pavement. Ostrowsky did not recall seeing
any grease on the pavement, or that she advised either plaintiff
or Minutolo that she "had seen slide marks through [the] greasy
substance." Despite some discrepancies, this testimony created a
credibility issue for the jury to resolve, and we discern no
reason to set aside the jury's determination.

        We do find, however, that Supreme Court erred in dismissing


    1
        This appeal from the final judgment brings up for review
the orders partially granting defendants' motion for summary
judgment and denying plaintiff's motion to set aside the verdict
(see CPLR 5501 [a] [1]; Gulati v O'Leary, 125 AD3d 1231, 1232 n
[2015]).
                              -3-                519732

plaintiff's claim concerning the missing railing. To prevail on
a motion for summary judgment, a defendant in a premises
liability action must "show that [it] maintained the premises in
a reasonably safe condition and neither created nor had actual or
constructive notice of any allegedly dangerous condition" (Ennis-
Short v Ostapecic, 68 AD3d 1399, 1400 [2009]; see Carter v State
of New York, 119 AD3d 1198, 1199 [2014]). Photographs of the
accident scene show that the pit is adjacent to a sidewalk and a
parking area at the back of the arena. Two large dumpsters were
situate in the pit along the parking area, and a railing was in
place along the sidewalk. Plaintiff fell in an area between the
dumpsters and the sidewalk and, while a railing would ordinarily
be in place in this area, plaintiff maintains that no railing was
in place when he fell. There is no dispute here that the pit
area was part of the original construction of the arena. The
focus is on whether the railing was in place and, if not, whether
defendants removed the railing or had actual or constructive
notice that the railing was missing, creating a dangerous
condition.

      Here, defendants' former maintenance supervisor, Michael
Holden, explained that the dumpsters were utilized by the
maintenance crew and that the exterior of the arena was inspected
each morning. Holden averred that the railings were removable,
but that, if he observed that a railing "was not in place[,] [he]
would have replaced it." For his part, Taylor explained that the
railings "were typically up, or in place." Ostrowsky testified
in her deposition that the railings were in place, but
acknowledged that she could not recall if a railing or "portable"
gate was in place where plaintiff fell.

      Notably, the accident occurred around 5:00 p.m. As such,
an early morning inspection does not resolve the question as to
whether or when the railing was removed. Nor did any of
defendants' witnesses directly confirm that the railing was in
place at the time that plaintiff fell. We take note that
defendants' employee, William Weyman, testified that the railing
was usually in place but, if removed, was probably removed by
maintenance staff or employees of food vendors at the arena. In
our view, the submissions actually raise questions of fact as to
whether the railing was missing, whether defendants' employees
                              -4-                  519732

were responsible for removing the railing, whether the railing
was missing for a sufficient period of time to permit defendants
to discover the condition and take remedial action and whether
the absence of a railing created a dangerous condition (see
Barley v Robert J. Williams, Inc., 122 AD3d 1116, 1117 [2014];
Carter v State of New York, 119 AD3d at 1199-1200; Hagen v Sears
Roebuck and Co., 61 AD3d 1264, 1266 [2009]). Accordingly,
Supreme Court erred in granting defendants' motion for summary
judgment dismissing the cause of action concerning the missing
railing.

     Peters, P.J., Lahtinen and Garry, JJ., concur.



      ORDERED that the judgment and the order entered April 26,
2012 are modified, on the law, without costs, by reversing so
much of the order as partially granted defendants' motion for
summary judgment; motion denied in its entirety and matter
remitted to the Supreme Court for further proceedings not
inconsistent with this decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
