Colgan v. Newsday, Inc.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (D’Emilio, J.), dated March 13, 1995, which denied its motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. On September 29, 1987, the plaintiff Robert Colgan slipped as he stepped through the "archway” of the door to a walk-in freezer while carrying several boxes of frozen shrimp. In opposition to the defendant’s motion for summary judgment, Mr. Colgan submitted an affidavit in which he stated that, two days before the accident, he had seen an accumulation of between two and seven inches of ice on the surface of the "archway”. He averred that the ice "encompassed the entire archway”, and that it was "as a result of [this] icy condition” that he was caused to slip and fall. Under the circumstances presented, we agree with the Supreme Court that there is an issue of fact as to whether the defendant had constructive notice of the dangerous condition in question, and that summary judgment is therefore not warranted (see, e.g., De Chirico v Waldbaums, Inc., 227 AD2d 371; Boyko v Limowski, 223 AD2d 962; Rizzo v Lincoln Diner Corp., 215 AD2d 546; Hath v Allied Maintenance Corp., 143 AD2d 634; Gaines v Long Is. State Park [361] Commn., 60 AD2d 724). Mangano, P. J., Bracken, Thompson and McGinity, JJ., concur.