I agree with the majority that, on this record, sufficient has been shown to demonstrate an issue of fact as to whether defendants could be found to have had constructive notice of the existence of the “transparent” icy condition upon which plaintiff allegedly fell. I write only to note my rejection of plaintiffs claim that snow had fallen until at *257least three or four hours before the 9:00 p.m. accident. Plaintiff also testified that “[fit had snowed a lot” that day. In fact, only a trace (.3 inches) of snow fell on the day of the accident and, as the climatological report shows, about 19 hours had elapsed from the falling of the .3 inches of snow to the time of the accident.
This exaggeration of the amount of snowfall on the day of the accident and of the time of its cessation is neither a mistake on plaintiffs part nor insignificant. He exaggerates the amount of snowfall to establish defendants’ duty to clear the snow, and misstates the time it stopped snowing to provide the factual support for his testimony that there was a layer of snow covering the ice.
The testimony as to the snow covering is of dubious validity given the lapse of 19 hours since the last traces of snow had fallen and the fact that the patch of ice upon which plaintiff fell was only six feet from the front entrance to the store, an area that would have been well trod in the intervening time. The testimony also ignores the fact that the temperature had reached a high of 39 degrees at 4:00 p.m. and remained above freezing until the time of the accident five hours later.
The obviously false claim of snow covering the icy area on which plaintiff fell, if accepted, would negate any argument that the existence of the ice patch must have been of recent origin, given the absence of scuff marks on the ice. That argument would weigh heavily on the issue of notice as well as comparative fault.
Since the judicial function on a motion for summary judgment is issue finding, not issue determination, the disposition of this appeal should make clear, despite plaintiffs claims to the contrary, that the record shows that only traces of snow fell on the day of the accident and that any such precipitation (.3 inches) occurred some 19 hours before the accident.
Williams, Gonzalez and Sweeny, JJ., concur with Kavanagh, J.; Sullivan, J.E, concurs in a separate opinion.
Order, Supreme Court, Bronx County, entered February 27, 2006, affirmed, without costs.