| Anderson v Great E. Mall, L.P. |
| 2010 NY Slip Op 05068 [74 AD3d 1760] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| Robert K. Anderson, Appellant, v Great Eastern Mall,L.P., et al., Respondents. |
—[*1] Petrone & Petrone, P.C., Buffalo (James H. Cosgriff, III, of counsel), fordefendant-respondent Kaufmann's Department Store, Inc.
Appeal from an order of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.),entered February 26, 2009 in a personal injury action. The order granted defendants' motions forsummary judgment dismissing the complaint and the cross claims.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the motions in part and reinstating the complaint insofar as the complaint, as amplifiedby the bills of particulars, alleges that defendants had actual or constructive notice of thedangerous condition and reinstating the cross claims and as modified the order is affirmedwithout costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen he slipped on ice and fell in front of the entrance to a store owned by defendantKaufmann's Department Store, Inc. We note at the outset that plaintiff does not contend thatSupreme Court erred in granting those parts of defendants' motions for summary judgmentdismissing the complaint and the cross claims insofar as the complaint, as amplified by the billsof particulars, alleges that defendants created the dangerous condition, and he therefore hasabandoned any issues with respect thereto (see Ciesinski v Town of Aurora, 202 AD2d984 [1994]). We agree with plaintiff, however, that the court erred in granting those parts of themotions for summary judgment dismissing the complaint insofar as the complaint, as amplifiedby the bills of particulars, alleges that defendants had actual or constructive notice of thedangerous condition and for summary judgment dismissing the cross claims. We thereforemodify the order accordingly. "[A] plaintiff is not required to prove that the defendants knew orshould have known of the existence of a particular defect where they had actual notice of arecurrent dangerous condition in that location" (Hale v Wilmorite, Inc., 35 AD3d 1251, 1251-1252 [2006]; see Chrisler v Spencer, 31 AD3d1124 [2006]). "A defendant who has actual knowledge of an ongoing and recurringdangerous condition can be charged with constructive notice of each specific [*2]reoccurrence of the condition" (Brown v Linden Plaza Hous. Co., Inc., 36 AD3d 742 [2007];see Chrisler, 31 AD3d 1124 [2006]).
Defendants failed to meet their initial burden of establishing that they did not have actualnotice of an ongoing and recurring dangerous condition, and they therefore failed to establishthat they did not have actual or constructive notice of the dangerous condition (seeChrisler, 31 AD3d 1124 [2006]; Migli v Davenport, 249 AD2d 932 [1998]). Insupport of their motions, defendants submitted the deposition testimony of plaintiff, whotestified that he fell as he was walking underneath a canopy. Plaintiff and his family members,who witnessed the accident, believed that the ice had formed from water dripping from a nearbydrain, from snow melting from the canopy, or from snow melting from a nearby snow pile.Defendants also submitted the deposition testimony of their employees, who testified that theyhad observed water coming from the nearby drain and ice accumulation near that drain. Theemployees also testified that snow on top of the canopy would slide off onto the sidewalks andwater would drip from the canopy onto the sidewalk near where plaintiff fell. Finally, theemployees testified that they would sometimes push the snow off of the sidewalks into a pile andthat the snow would melt from the pile and form ice in front of the store. We thus conclude thatthere is a triable issue of fact whether "there was in fact a 'recurring dangerous condition in thearea of the slip and fall that was routinely left unaddressed' " (Hale, 35 AD3d at 1252).Present—Scudder, P.J., Centra, Carni, Sconiers and Pine, JJ.