        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

802
CA 11-00247
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND GREEN, JJ.


JAMES ENGLERTH AND HOLLI ENGLERTH,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

PENFIELD CENTRAL SCHOOL DISTRICT,
DEFENDANT-RESPONDENT.


FARACI LANGE, LLP, ROCHESTER (KATHRYN K. LEE OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

GOLDBERG SEGALLA LLP, ROCHESTER (PATRICK B. NAYLON OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Thomas
A. Stander, J.), entered September 28, 2010 in a personal injury
action. The order granted the motion of defendant for summary
judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied
and the complaint is reinstated.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by James Englerth (plaintiff) when he allegedly
slipped and fell on an icy condition in a parking lot owned by
defendant. Defendant thereafter moved for summary judgment dismissing
the complaint on the grounds that it did not have actual or
constructive notice of the condition. In addition, defendant
contended that there was a storm in progress, thus precluding
liability on its part, and that it did not create the condition.
Supreme Court erred in granting defendant’s motion. Even assuming,
arguendo, that defendant met its initial burden with respect to actual
notice of the icy condition, we conclude that plaintiffs raised an
issue of fact concerning such notice (see generally Ruic v Roman
Catholic Diocese of Rockville Ctr., 51 AD3d 1000, 1001; Tortorella v
New York City Tr. Auth., 291 AD2d 445, 446). Although defendant
submitted evidence that it did not have constructive notice of the icy
condition by submitting plaintiff’s deposition testimony in which
plaintiff testified that the condition was not visible and apparent
(see Mullaney v Royalty Props., LLC, 81 AD3d 1312; Wright v Rite-Aid
of NY, 249 AD2d 931), plaintiffs raised an issue of fact with respect
to such notice by submitting the sworn statement of a witness who
observed “ice with water on top of the ice” near the area of
                                 -2-                           802
                                                         CA 11-00247

plaintiff’s fall (see Conklin v Ulm, 41 AD3d 1290; Pugliese v Utica
Natl. Ins. Group, 295 AD2d 992, 992-993). In addition, there is an
issue of fact whether the alleged condition formed prior to
commencement of the storm in progress and was therefore a preexisting
hazard, rather than the product of a storm in progress for which
defendant would have no liability (see Hayes v Norstar Apts., LLC, 77
AD3d 1329; Schuster v Dukarm, 38 AD3d 1358), and whether defendant
created the condition.




Entered:   June 17, 2011                        Patricia L. Morgan
                                                Clerk of the Court
