| Wesolek v Jumping Cow Enters., Inc. |
| 2008 NY Slip Op 04160 [51 AD3d 1376] |
| May 2, 2008 |
| Appellate Division, Fourth Department |
| Kenneth Wesolek, Appellant, v Jumping Cow Enterprises, Inc.,Defendant, and Calumet Properties, Inc., et al., Respondents. |
—[*1] Cohen & Lombardo, P.C., Buffalo (Jonathan D. Cox of counsel), for defendant-respondentCalumet Properties, Inc. Gross, Shuman, Brizdle & Gilfillan, P.C., Buffalo (David H. Elibol of counsel), fordefendants-respondents Ultimate Restaurants, Inc., Doing Business as Bacchus Wine & BarRestaurant and Steve Calvaneso, Doing Business as Bacchus Wine & Bar Restaurant.
Appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), enteredMay 14, 2007 in a personal injury action. The order, insofar as appealed from, granted themotions of defendants Calumet Properties, Inc., Ultimate Restaurants, Inc., doing business asBacchus Wine & Bar Restaurant, and Steve Calvaneso, doing business as Bacchus Wine & BarRestaurant, for summary judgment dismissing the amended complaint against them.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the motion of defendant Calumet Properties, Inc. and reinstating the amended complaintagainst that defendant and by denying in part the motion of defendants Ultimate Restaurants,Inc., doing business as Bacchus Wine & Bar Restaurant, and Steve Calvaneso, doing business asBacchus Wine & Bar Restaurant, and reinstating the amended complaint against defendantUltimate Restaurants, Inc., doing business as Bacchus Wine & Bar Restaurant, and as modifiedthe order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen he slipped and fell while descending the stairs to the basement at his place of employment.According to the testimony of plaintiff at his deposition, he made a claim for workers'compensation benefits for his injury but was informed that his employer, defendant UltimateRestaurants, Inc., doing business as Bacchus Wine & Bar Restaurant (Ultimate), did not haveworkers' compensation insurance. Supreme Court erred in granting the motion of [*2]defendant Calumet Properties, Inc. (Calumet), the owner of thebuilding in which plaintiff fell, for summary judgment dismissing the amended complaint againstit and that part of the motion of Ultimate and defendant Steve Calvaneso, doing business asBacchus Wine & Bar Restaurant (Calvaneso), the sole shareholder and director of Ultimate, forsummary judgment dismissing the amended complaint against Ultimate, and we therefore modifythe order accordingly. The moving defendants "had the initial burden of establishing that [they]did not create the dangerous condition that caused plaintiff to fall and did not have actual orconstructive notice thereof" (Quinn vHoliday Health & Fitness Ctrs. of N.Y., Inc., 15 AD3d 857, 857 [2005]; see Finger v Cortese, 28 AD3d1089, 1090 [2006]; Gonzalez vJenel Mgt. Corp., 11 AD3d 656 [2004]). We note at the outset that plaintiff has notalleged that defendants created the allegedly dangerous condition, i.e., water on the basementfloor and stairs, and thus the only issue before us is whether defendants had actual or constructivenotice thereof.
"To constitute constructive notice, a[n allegedly dangerous condition] must be visible andapparent and it must exist for a sufficient length of time prior to the accident to permit adefendant's employees to discover and remedy it" (Gordon v American Museum of NaturalHistory, 67 NY2d 836, 837 [1986]). We note, however, that "a plaintiff is not required toprove that the defendants knew or should have known of the existence of a particular defectwhere they had actual notice of a recurrent dangerous condition in that location" (Hale v Wilmorite, Inc., 35 AD3d1251, 1251-1252 [2006]; seeChrisler v Spencer, 31 AD3d 1124, 1125 [2006]; O'Connor-Miele v Barhite &Holzinger, 234 AD2d 106, 106-107 [1996]). "A defendant who has actual knowledge of anongoing and recurring dangerous condition can be charged with constructive notice of eachspecific reoccurrence of the condition" (Brown v Linden Plaza Hous. Co., Inc., 36 AD3d 742 [2007]).
We conclude that the moving defendants failed to meet their respective initial burdens ofestablishing that Calumet and Ultimate lacked actual or constructive notice of the dangerouscondition (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Insupport of their motions, those defendants submitted the deposition testimony of plaintiff, whotestified that he noticed that his shirt and pants were wet after he fell. Plaintiff further testifiedthat the basement had flooded on three occasions in the year prior to his fall and that he and otheremployees had to walk on milk crates to avoid the high water. According to plaintiff, even whenthe flooding receded, there were still pockets of water on the basement floor, and the stairsbecame wet when employees walked through the water and then ascended the stairs. Plaintiffdescribed that condition as "constant," and he testified that there were pockets of water on thebasement floor on the day of his accident. We thus conclude that, by submitting plaintiff'sdeposition testimony, defendants raised a triable issue of fact whether the accumulation of wateron the basement floor and stairs "was a dangerous and frequently unremedied recurringcondition" (Bido v 876-882 Realty,LLC, 41 AD3d 311, 312 [2007]). Even assuming, arguendo, that defendants met theirinitial burden on their respective motions, we conclude that plaintiff raised a triable issue of factby submitting the affidavit of his coworker, who stated therein that there were two or three inchesof water on the basement floor constantly, including on the day of plaintiff's accident, and thatthe water on the floor caused the stairs to become wet.
We further conclude, however, that the court properly granted that part of the motion ofUltimate and Calvaneso for summary judgment dismissing the amended complaint againstCalvaneso. "It is well settled that a corporate officer may not be held liable for the negligence ofthe corporation merely because of his or her official relationship to it" (Bernstein v StarrettCity, 303 AD2d 530, 532 [2003]). Those defendants thus established as a matter of law thatCalvaneso, in his status as Ultimate's sole shareholder and director, is not liable for the allegednegligence of Ultimate, and plaintiff failed to raise a triable issue of fact (see generallyZuckerman, 49 NY2d at 562). Present—Scudder, P.J., Smith, Centra, Peradotto andPine, JJ.