| Phillips v Henry B'S, Inc. |
| 2011 NY Slip Op 05306 [85 AD3d 1665] |
| June 17, 2011 |
| Appellate Division, Fourth Department |
| Jason Phillips et al., Respondents, v Henry B's, Inc., et al.,Respondents, and Jon W. Buchwald, Individually and as Owner of Property at 86 Fall Street,Appellant. |
—[*1] Williams & Rudderow, PLLC, Syracuse (Michelle Ellsworth Rudderow of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Seneca County (Dennis F. Bender, A.J.),entered July 27, 2010 in a personal injury action. The order, insofar as appealed from, denied themotion of defendant Jon W. Buchwald, individually and as owner of property at 86 Fall Street,for summary judgment dismissing the complaint and all cross claims against him.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion in part and dismissing the complaint against defendant Jon W. Buchwald,individually and as owner of property at 86 Fall Street, except to the extent that the complaint, asamplified by the bill of particulars, alleges that he had actual or constructive notice of a recurringdangerous condition that contributed to plaintiff's accident and as modified the order is affirmedwithout costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedlysustained by Jason Phillips (plaintiff) when, during the course of his employment as a mailcarrier, he slipped and fell on a patch of black ice in a parking lot located behind the buildings at84 and 86 Fall Street in the Village of Seneca Falls. Jon W. Buchwald, individually and as ownerof property at 86 Fall Street (defendant), moved for summary judgment dismissing the complaintagainst him on the grounds that the accident did not occur on his property and that he did notcreate or have actual or constructive notice of the ice upon which plaintiff slipped. SupremeCourt denied the motion in its entirety. We agree with defendant that the court erred in denyingthat part of his motion seeking summary judgment dismissing the complaint against him insofaras it alleges, as amplified by the bill of particulars, that he had actual or constructive notice of theicy condition in the parking lot. We therefore modify the order accordingly. [*2]Defendant met his initial burden of demonstrating that he hadneither actual notice of the icy condition in question nor constructive notice thereof, inasmuch asthe black ice was not "visible and apparent" (Gordon v American Museum of NaturalHistory, 67 NY2d 836, 837 [1986]; see Carpenter v J. Giardino, LLC, 81 AD3d 1231, 1232-1233[2011]; Mullaney v Royalty Props.,LLC, 81 AD3d 1312 [2011]). Plaintiffs failed to raise a triable issue of fact inopposition to that part of the motion (cf. Pugliese v Utica Natl. Ins. Group, 295 AD2d992 [2002]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
We reject defendant's contention, however, that the court erred in denying that part of themotion seeking summary judgment dismissing the complaint against him insofar as it alleges, asamplified by the bill of particulars, that he had actual or constructive notice of a recurringdangerous condition on his property that may have contributed to the accident. "[A] plaintiff isnot required to prove that the defendant[ ] knew or should have known of the existence of aparticular defect where [he or she] had actual notice of a recurrent dangerous condition in thatlocation" (Hale v Wilmorite, Inc.,35 AD3d 1251, 1251-1252 [2006]). Defendant failed to meet his initial burden with respectto the existence of such a condition because his own submissions demonstrated that there was "'an ongoing and recurring dangerous condition . . . in the area of the accident [thathe] routinely left unaddressed' " (Knight v Sawyer, 306 AD2d 849, 849 [2003]; see Anderson v Great E. Mall, L.P., 74AD3d 1760, 1761 [2010]). Indeed, defendant submitted evidence that he failed to replace agutter downspout on his building that had been removed 10 years before the accident and that, asa result, water routinely drained from a hole in the gutter, traveled down stairs that sloped towardthe parking lot, and then drained into the area where plaintiff fell.
Defendant further contends that the court should have denied the motion in its entiretybecause plaintiff's fall did not occur on his property. We reject that contention. The collectivedeposition testimony of the various eyewitnesses to the accident placed the location of plaintiff'sfall approximately on the border between defendant's property and that owned by defendantStephen W. Turri, individually and as owner of Henry B's, Inc. In any event, even assuming,arguendo, that plaintiff was on Turri's property when he fell, defendant may be held liable in theevent that the dangerous condition on his property caused or contributed to the accident (seeOrr v Spring, 288 AD2d 663, 665 [2001]; Hennessy v Palmer Video, 237 AD2d 571[1997]). Present—Scudder, P.J., Fahey, Lindley, Green and Gorski, JJ.