Defendant, United Health Services, Inc., moves for summary judgment dismissing plaintiffs' complaint pursuant to CPLR § 3212. Plaintiffs, Maria and Steven Connolly, oppose the motion.

The court heard oral argument from counsel on February 19, 2010. This case is scheduled for a four day jury trial starting on June 28, 2010.

At approximately 8:00 a.m. on February 22, 2007, plaintiff Maria Connolly drove her vehicle up the driveway/ramp to the main entrance of Wilson Memorial Regional Medical Center located at 37-55 Harrison Street, Johnson City, New York. Plaintiff^[FN1] parked her vehicle in front of the main entrance under an overhang intending to use the ATM machine in the lobby of the hospital. Plaintiff describes her accident as follows: "[a]s I exited the vehicle my left foot came in contact with ice on the ground causing me to loose [sic] control and criss-cross my legs" (Plaintiff's Affidavit, ¶ 2). Plaintiff further states that immediately after her fall she "[o]bserved a large thin sheet of ice in the area where I fell. I did not notice this condition prior to exiting my vehicle" (Plaintiff's Affidavit, ¶ 3). Plaintiff was ultimately diagnosed with acute herniated lumbar disc with left L-5/S-1 radiculopathy.

On August 26, 2008, this action was commenced upon the filing of a summons and complaint in the Broome County Clerk's Office. Defendant interposed an answer on September 10, 2008.

It is well-settled that on a defense motion for summary judgment to dismiss a complaint based upon lack of notice, a defendant is required to make a prima facie showing affirmatively establishing the absence of notice - actual or constructive - as a matter of law (Goldman v Waldbaum, Inc., 248 AD2d 436, 437 [2nd Dept 1998], lv denied 92 NY2d 805 [1998]; Sosa v Golub Corp., 273 AD2d 762 [3rd Dept 2000]). Constructive notice arises only if the dangerous or defective condition is visible and apparent and has existed for a sufficient length of time for defendant to have discovered and remedied or warned of the same (Gordon v American Museum of Natural History, 67 NY2d 836, 837-838 [1986]).

Defendant submits proof that the hospital grounds are patrolled by the Security Department and the Engineering (maintenance) Department.^[FN2] Defendant submits an affidavit from the manager of Morris Protective Services, Inc. establishing that on the date of this [*2]accident, the front doors "[w]ere unlocked by the Security Department for the public use at approximately 5:30 a.m. At that time, as per policy and procedure, the entrance and parking area utilized by the plaintiff was inspected for any dangerous or defective conditions" (Affidavit of Rich Keehle, ¶ 8). Additionally, defendant submits an affidavit from the supervisor of the Engineering Department indicating that "[s]ecurity personnel from Morris Protective Services, Inc., would open the doors adjacent to the driveway where plaintiff fell and they would further observe the conditions of the entrance area and report any hazardous conditions to Engineering for corrective action prior to permitting the public to utilize the entrance" (Affidavit of Tom Oziemina, ¶5). Both Mr. Keehle and Mr. Oziemina aver that there were no reports of an icy condition nor any reports of a fall on the date of this accident between the time the front doors were opened at 5:30 a.m. and plaintiff's fall at approximately 8:00 a.m.

The court finds that defendant's evidence that there were no prior complaints and that their general inspection and patrol protocol inspection failed to reveal any problem meets its burden of proof that it did not have actual notice of the dangerous or defective condition (Van Alstyne v Fonda Refm. Church, 224 AD2d 901 [3rd Dept 1996]). With respect to constructive notice, it is well-settled that a defendant may meet its burden of affirmatively demonstrating a lack of constructive notice by offering proof of regularly recurring maintenance or inspection of the premises (Kropp v Corning, Inc., 69 AD3d 1211 [3rd Dept 2010]). The court finds that defendant's evidence meets it's burden on constructive notice as well (Candelario v Watervliet Hous. Auth., 46 AD3d 1073, 1074 [3rd Dept 2007]).

Thus, the burden has shifted to plaintiff to demonstrate a triable issue of fact with respect to the issue of actual or constructive notice.

With respect to the actual inspection of the driveway/ramp area on the date of this accident, the court is troubled by the absence of proof from the employee who actually opened the front doors on the date of this accident and inspected the ramp/driveway area. While defendant submitted the deposition transcript of Douglas B. Ayers, a security officer employed by Morris Protective Services and one of the officers on-duty on the date of plaintiff's accident, Officer Ayers did not come on duty until 8:00 a.m. on the date of this accident, so he was not present when the doors opened at 5:30 a.m.^[FN3] In general, however, Officer Ayers indicated it was not his "normal procedure to go up there [the ramp]. If you go like once a shift, that pretty much covers it" (Defendant's Exhibit G, p 14). Officer Ayers indicated he did not recall seeing ice in [*3]the past in the driveway/ramp area and that he "never really noticed it. I never looked that close, but - - I've never had anybody else have a situation" (Defendant's Exhibit G, p 15). The court finds Officer Ayers' deposition raises questions of fact as to the sufficiency of the inspection conducted by his unnamed colleague that opened the doors at 5:30 a.m.

With respect to the issue of constructive notice, plaintiff's burden is to establish a triable issue of fact as to whether the defective or dangerous condition was visible and apparent and existed for a sufficient length of time prior to the accident such as to permit defendant time to discover and remedy said condition by the exercise of reasonable care (Lyons v Cold Brook Cr. Realty Corp., 268 AD2d 659 [3rd Dept 2000]). Although no meteorological evidence has been submitted on this motion, defendant conceded during oral argument that the weather was clear, albeit freezing, the evening before and on the morning of this accident. Moreover, there are seven photographs taken within one hour after the accident which depict an icy area on the ramp/driveway under the overhang. In this court's view, the evidence, taken as a whole and viewed in the light most favorable to plaintiff, could lead a jury to reasonably conclude that the ramp/driveway area under the overhang had been in this condition, for a sufficient period of time from the time the main doors were locked the night before,^[FN4] but at the least, from the time when the doors opened at 5:30 a.m., and prior to this accident to provide defendant notice thereof. Stated another way, defendant's 5:30 a.m. inspection failed to pick up what was actually present, namely an icy ramp/driveway. Even if the ramp/driveway area only looked wet, a jury could reasonably conclude that temperatures were admittedly cold enough between 5:30 a.m. and 8:00 a.m. that this highly trafficked area should have been salted. In sum, viewing plaintiff's proof in the light most favorable to her, the court finds a triable issue of fact has been raised regarding constructive notice as well (Gadani v Dormitory Auth. of State of NY, 43 AD3d 1218, 1219 [3rd Dept 2007]). Consequently, the court finds factual issues sufficient to defeat defendant's motion for summary judgment (Moriarity v Wallace Dev. Co., LLC., 61 AD3d 1088 [3rd Dept 2009]).

For the reasons stated, defendant's motion for summary judgment is denied. The jury trial will proceed as scheduled on June 28, 2010.

The foregoing constitutes an Order of the court. The mailing of a copy of this Decision and Order by this court shall not constitute notice of entry.

It is so ordered.

Dated: March 18, 2010

Binghamton, New York [*4]

s/ Hon. Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court