Duman v. City of Buffalo

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied in part the motion of Buffalo Municipal Housing Authority (defendant) for summary judgment dismissing the complaint against it. Peter J. Duman (plaintiff) slipped on ice that was covered with a light dusting of snow, causing him to fall on a sidewalk on defendant’s property. Defendant failed to meet its initial burden of establishing lack of constructive notice (see, Perrone v Ilion Main St. Corp., 254 AD2d 784, 784-785). Although defendant provided the deposition testimony of plaintiff that he did not see the ice, it failed to prove “that the ice formed so close in time to the accident that [defendant] could not reasonably have been expected to notice and remedy the condition” (Jordan v Musinger, 197 AD2d 889, 890). Thus, defendant failed to “make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). (Appeal from Order of Supreme Court, Erie County, Flaherty, J. — Summary Judgment.) Present — Wisner, J. P., Hurlbutt, Scudder and Lawton, JJ.