| Vincent v Landi |
| 2012 NY Slip Op 09136 [101 AD3d 1565] |
| December 27, 2012 |
| Appellate Division, Third Department |
| David Vincent et al., Respondents, v Angelo T. Landi, Individuallyand Doing Business as Angelo's Steak and Seafood Restaurant, Appellant, et al.,Defendant. |
—[*1] Fischer, Bessette, Muldowney & Hunter, LLP, Malone (Matthew H. McArdle of counsel),for respondents.
Stein, J. Appeal from that part of an order of the Supreme Court (Demarest, J.), enteredJanuary 4, 2012 in Franklin County, which denied Angelo T. Landi's motion for summaryjudgment dismissing the complaint against him.
Late one January 2007 afternoon, plaintiff David Vincent (hereinafter plaintiff) and his wife,plaintiff Mary Vincent, went to dinner at Angelo's Steak and Seafood Restaurant, owned bydefendant Angelo T. Landi (hereinafter defendant), located in the Town of Potsdam, St.Lawrence County. Plaintiffs parked in a lot next to the restaurant and walked from the lot to therestaurant on a shoveled path that ran adjacent to the building. When they left the restaurant lessthan two hours later, plaintiff slipped on the path, which was covered in black ice, injuring hisankle. Plaintiff and his wife, derivatively, commenced this negligence action against defendantand the owner of the premises. As relevant here, defendant subsequently moved for summaryjudgment dismissing the complaint against him. Supreme Court, among other things, denied[*2]defendant's motion and this appeal by defendant ensued.
We affirm. As limited by plaintiffs' complaint, defendant, as the movant for summaryjudgment, bore the initial burden of establishing, as a matter of law, that he maintained theproperty in a reasonably safe condition and did not have actual or constructive notice of theallegedly dangerous condition (seeEdick v General Elec. Co., 98 AD3d 1217, 1218 [2012]; Black v Kohl's Dept. Stores, Inc., 80AD3d 958, 961 [2011]). In support of his motion, defendant provided, among other things,the deposition testimony of plaintiffs, as well as his own testimony. Defendant's testimony thathis employees were instructed to keep the path shoveled and sanded and that, to his knowledge,they had done so on the day in question was arguably sufficient to demonstrate that defendantmaintained the property in a reasonably safe condition. Defendant further testified that he was notpresent at the restaurant on the evening that plaintiff fell and learned of the icy conditionthereafter from his employees who were working at the time, thereby establishing the absence ofactual notice.
Plaintiff's wife testified that she did not see any ice before she entered the restaurant, but thatshe observed ice on the path from the doorway of the restaurant as she was exiting. According toplaintiff's testimony, he did not notice the ice until after he fell. Neither plaintiffs nor defendantwere aware of any other patrons slipping or complaining about ice in the area where plaintiff fell.Given the characteristics of black ice, which "is, by its very nature, difficult to see" (Martin v RP Assoc., 37 AD3d1017, 1018 [2007] [internal quotation marks and citation omitted]) and plaintiffs' testimonythat the ice formed in less than two hours, defendant also made a prima facie showing that he didnot have constructive notice of the icy condition, as such "condition [was not] visible andapparent and in existence for a sufficient period of time so as to allow [him] an opportunity totake corrective action" (Kearsey v VestalPark, LLC, 71 AD3d 1363, 1364 [2010] [internal quotation marks and citationsomitted]). Thus, the burden shifted to plaintiffs to demonstrate the existence of a triable issue offact (see CPLR 3212 [b]; Cole vRoberts-Bonville, 99 AD3d 1145, 1147 [2012]).
In opposition to defendant's motion, plaintiffs argued, among other things, that the formationof ice on the path leading from the parking area to the restaurant entrance was a recurringcondition of which defendant was aware. "[W]here a [responsible party] has actual knowledge ofthe tendency of a particular dangerous condition to reoccur, he [or she] is charged withconstructive notice of each specific recurrence of that condition" (Bush v Mechanicville WarehouseCorp., 69 AD3d 1207, 1208 [2010] [internal quotation marks and citations omitted]; see Mazerbo v Murphy, 52 AD3d1064, 1066 [2008], appeal dismissed 11 NY3d 770 [2008]. Here, plaintiffs assertedthat water repeatedly dripped from the eaves of the roof where there were no gutters and froze onthe path below. Defendant acknowledged that, although he had installed gutters along the roofover the door of the restaurant in order "to make [the entrance] passable for patrons," he did notrun the gutters over that portion of the roof that extended along the path leading from the parkingarea. He further testified that he was aware that water from the roof would sometimes drip ontothe path and freeze. Plaintiffs also submitted photographic evidence that the area of the pathwhere plaintiff [*3]fell was located below the eaves. In addition,plaintiffs provided the affidavit of one of defendant's employees who confirmed the existence ofice on the path when plaintiff fell. That employee further stated that there had been freezing rainearlier in the day, followed by sunshine in the afternoon and that, when she arrived at work,water was dripping from the roof.
Considering this evidence in the light most favorable to plaintiffs (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]; Kumar v Kumar, 96 AD3d 1323, 1326 [2012]), we conclude thatquestions of fact remain as to whether defendant had constructive notice that a dangerouscondition existed and whether he took reasonable steps to rectify such condition (see Black vKohl's Dept. Stores, Inc., 80 AD3d at 960-961).[FN*]Accordingly, Supreme Court properly denied defendant's motion.
To the extent not specifically addressed herein, defendant's remaining contentions have beenconsidered and found to be unavailing.
Mercure, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the order isaffirmed, with costs.[*4]
Footnote *: Defendant's hearsay testimonythat his employees told him they had attended to the path at least three times on the day inquestion is not admissible in support of defendant's motion (see Ulster County, N.Y. v CSI, Inc., 95 AD3d 1634, 1636 [2012];Craft v Whittmarsh, 83 AD3d1271, 1273 [2011]).