10731. LORAINE WRIGHT, plf-res, v. EMIGRANT SAVINGS BANK, FORMERLY KNOWN AS DOLLAR SAVINGS BANK OF NEW YORK, def, 2051 GMA RESTAURANT CORP., DOING BUSINESS AS SEVEN SEAS RESTAURANT, def-res, RIVERBAY CORPORATION, def-ap — Armienti, DeBellis, Gugliemo & Rhoden, LLP, New York (Harriet Wong of counsel), for ap — Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph of counsel), for Loraine Wright res — Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for 2051 GMA Restaurant Corp., res — Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about February 29, 2012, which, insofar as appealed from as limited by the briefs, denied defendant-respondent Riverbay Corporation’s (Riverbay) motion for summary judgment dismissing plaintiff’s complaint, and denied Riverbay’s cross motion to amend the answer to assert a cross claim against defendant 2051 GMA Restaurant Corp. d/b/a Seven Seas Restaurant (Seven Seas) alleging breach of contract for failure to procure insurance, unanimously affirmed, without costs.
The court properly denied Riverbay’s motion for summary judgment dismissing the complaint. Riverbay has not established prima facie that it did not create or have notice of the black ice that allegedly caused plaintiff to slip and fall, as it failed to submit any evidence concerning its snow/ice removal and inspections efforts taken on the day of the accident with respect to the area where plaintiff fell(see Spector v. Cushman & Wakefield, Inc., 87 AD3d 422, 423 [1st Dept 2011]; De La Cruz v. Lettera Sign & Elec. Co., 77 AD3d 566, 566 [1st Dept 2010]; Santiago v. New York City Health & Hosps. Corp., 66 AD3d 435, 435 [1st Dept 2009]). In any event, plaintiff’s description of the black ice as “black grayish” “dirty snow” that was circular and measured about 1 foot wide provided at least some indication that the condition had existed for some time, raising an issue of fact as to constructive notice (Gordon v. American Museum of Natural History, 67 NY2d 836 [1986]).
