        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

652
CA 10-02135
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, GREEN, AND GORSKI, JJ.


JASON PHILLIPS AND MARY BETH PHILLIPS,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

HENRY B’S, INC., HENRY B. TURRI, INC.,
STEPHEN W. TURRI, INDIVIDUALLY AND AS OWNER
OF HENRY B’S, INC., HENRY B. TURRI, INC.,
DEFENDANTS-RESPONDENTS,
AND JON W. BUCHWALD, INDIVIDUALLY AND AS OWNER
OF PROPERTY AT 86 FALL STREET,
DEFENDANT-APPELLANT.


COSTELLO, COONEY & FEARON, PLLC, CAMILLUS (MAUREEN G. FATCHERIC OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAMS & RUDDEROW, PLLC, SYRACUSE (MICHELLE ELLSWORTH RUDDEROW OF
COUNSEL), FOR PLAINTIFFS-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 the motion 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 by granting 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, as amplified by the bill of particulars,
alleges that he had actual or constructive notice of a recurring
dangerous condition that contributed to plaintiff’s accident and as
modified the order is affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries allegedly sustained by Jason Phillips (plaintiff) when,
during the course of his employment as a mail carrier, he slipped and
fell on a patch of black ice in a parking lot located behind the
buildings at 84 and 86 Fall Street in the Village of Seneca Falls.
Jon W. Buchwald, individually and as owner of property at 86 Fall
Street (defendant), moved for summary judgment dismissing the
complaint against him on the grounds that the accident did not occur
on his property and that he did not create or have actual or
                                 -2-                           652
                                                         CA 10-02135

constructive notice of the ice upon which plaintiff slipped. Supreme
Court denied the motion in its entirety. We agree with defendant that
the court erred in denying that part of his motion seeking summary
judgment dismissing the complaint against him insofar as it alleges,
as amplified by the bill of particulars, that he had actual or
constructive notice of the icy condition in the parking lot. We
therefore modify the order accordingly. Defendant met his initial
burden of demonstrating that he had neither actual notice of the icy
condition in question nor constructive notice thereof, inasmuch as the
black ice was not “visible and apparent” (Gordon v American Museum of
Natural History, 67 NY2d 836, 837; see Carpenter v J. Giadino, LLC, 81
AD3d 1231, 1232-1233; Mullaney v Royalty Props., LLC, 81 AD3d 1312).
Plaintiffs failed to raise a triable issue of fact in opposition to
that part of the motion (cf. Pugliese v Utica Natl. Ins. Group, 295
AD2d 992; see generally Zuckerman v City of New York, 49 NY2d 557,
562).

     We reject defendant’s contention, however, that the court erred
in denying that part of the motion seeking summary judgment dismissing
the complaint against him insofar as it alleges, as amplified by the
bill of particulars, that he had actual or constructive notice of a
recurring dangerous condition on his property that may have
contributed to the accident. “[A] plaintiff is not required to prove
that the defendant[] knew or should have known of the existence of a
particular defect where [he or she] had actual notice of a recurrent
dangerous condition in that location” (Hale v Wilmorite, Inc., 35 AD3d
1251, 1251-1252). Defendant failed to meet his initial burden with
respect to 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 [that he]
routinely left unaddressed’ ” (Knight v Sawyer, 306 AD2d 849, 849; see
Anderson v Great E. Mall, L.P., 74 AD3d 1760, 1761). Indeed,
defendant submitted evidence that he failed to replace a gutter
downspout on his building that had been removed 10 years before the
accident and that, as a result, water routinely drained from a hole in
the gutter, traveled down stairs that sloped toward the parking lot,
and then drained into the area where plaintiff fell.

     Defendant further contends that the court should have denied the
motion in its entirety because plaintiff’s fall did not occur on his
property. We reject that contention. The collective deposition
testimony of the various eyewitnesses to the accident placed the
location of plaintiff’s fall approximately on the border between
defendant’s property and that owned by defendant Stephen 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 the event that the dangerous
condition on his property caused or contributed to the accident (see
Orr v Spring, 288 AD2d 663, 665; Hennessy v Palmer Video, 237 AD2d
571).

Entered:   June 17, 2011                        Patricia L. Morgan
                                                Clerk of the Court
