Feeney v. Benderson Development Co.

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied that part 966 of defendants’ motion seeking summary judgment dismissing the complaint in this personal injury action. Pamela Feeney (plaintiff) alleged that she slipped on ice and fell in defendants’ parking lot as a result of defendants’ negligence. Defendants met their initial burden of establishing their entitlement to judgment as a matter of law by submitting the deposition testimony of plaintiff in which she stated that she did not recall seeing any ice, and defendants further established that they had no notice of the allegedly dangerous condition. Plaintiffs raised an issue of fact, however, by submitting an affidavit of a witness to plaintiff’s accident who, while assisting plaintiff, noticed black ice on the parking lot where plaintiff fell. In addition, plaintiffs raised an issue of fact whether defendants created the dangerous condition by piling snow that melted, ran onto the sidewalk and parking lot, and thereafter froze (see, Merlo v Zimmer, 231 AD2d 952, 953; Fezza v Rogers, 167 AD2d 599, 601). The court also properly denied that part of defendants’ motion seeking dismissal of the complaint based on plaintiffs’ failure to file a timely note of issue and statement of readiness. Defendants served plaintiffs with a demand to file a note of issue, and plaintiffs failed to file a note of issue within the 90-day extension granted by the court. In opposition to defendants’ motion, however, plaintiffs established a justifiable excuse for the delay and a good and meritorious cause of action (see, CPLR 3216 [e]; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503; McClure v County of Niagara, 216 AD2d 874; cf., Geise v Wetherill, 238 AD2d 952). (Appeal from Order of Supreme Court, Erie County, Notaro, J. — Summary Judgment.) Present — Pine, J. P., Hayes, Wisner and Boehm, JJ.