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

110
CA 11-01559
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THOMAS GWITT, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DENNY’S, INC., DENNY’S RESTAURANT,
DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.


DAMON MOREY LLP, BUFFALO (JENNIFER L. LEONARDI OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

BROWN CHIARI LLP, LANCASTER (DAVID W. OLSON OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered January 12, 2011 in a personal injury action. The
order, insofar as appealed from, denied in part the motion of
defendants for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action alleging that he
slipped and fell on snow and ice in the parking lot of defendant
Denny’s, Inc., also, as noted by Supreme Court, improperly sued as
Denny’s Restaurant (Denny’s). Defendants thereafter moved for summary
judgment dismissing the second amended complaint. As relevant to this
appeal, the court granted the motion in part with respect to Denny’s,
determining that Denny’s was entitled to summary judgment insofar as
the second amended complaint, as amplified by the bill of particulars,
alleged that Denny’s was negligent in creating the icy condition and
in having actual notice of it, but that Denny’s failed to meet its
initial burden on the motion of establishing as a matter of law that
it lacked constructive notice of the icy condition. Denny’s appeals,
contending that the court should have granted the motion in its
entirety with respect to it. We affirm.

     With respect to constructive notice, Denny’s had the initial
burden of establishing that the ice was not visible and apparent (see
Phillips v Henry B’S, Inc., 85 AD3d 1665, 1666; Mullaney v Royalty
Props., LLC, 81 AD3d 1312), or “that the ice formed so close in time
to the accident that [Denny’s] could not reasonably have been expected
to notice and remedy the condition” (Jordan v Musinger, 197 AD2d 889,
890). Contrary to Denny’s contention, the fact that plaintiff did not
                                 -2-                           110
                                                         CA 11-01559

notice the ice before he slipped on it does not establish Denny’s
entitlement to judgment as a matter of law on the issue whether the
ice was visible and apparent. Indeed, plaintiff testified without
contradiction at his deposition that he observed the ice after he
fell, immediately after he exited his car (see King v Sam’s E., Inc.,
81 AD3d 1414, 1415; Russo v YMCA of Greater Buffalo, 12 AD3d 1089, lv
dismissed 5 NY3d 746).

     Contrary to Denny’s further contention, the deposition testimony
of Denny’s manager that she routinely inspected the parking lot did
not establish as a matter of law that the ice formed so close in time
to the accident that Denny’s may not be charged with constructive
notice of it (see Conklin v Ulm, 41 AD3d 1290). The manager
acknowledged at her deposition that she did not inspect the entire
parking lot on the morning in question, and that she was primarily
looking for garbage, not icy conditions. Although the manager later
set forth in an affidavit that she specifically inspected the parking
lot for icy conditions when she left the restaurant for the bank at
9:00 A.M., that assertion is at odds with her deposition testimony.
We thus conclude that the affidavit was “ ‘tailored to avoid the
consequences of’ ” that deposition testimony (Tronolone v Jankowski,
74 AD3d 1721, 1722), and that the conflict between her deposition
testimony and her affidavit raises a question of credibility to be
resolved at trial (see Palmer v Horton, 66 AD3d 1433, 1434).




Entered:   February 10, 2012                    Frances E. Cafarell
                                                Clerk of the Court
