Opinion
267 CA 19-01034
10-02-2020
Cassandra MONNIN, Plaintiff-Appellant, v. CLOVER GROUP, INC., Briarcliff Associates, LP, Briarcliff Apartments and Clover Management, Inc., Defendants-Respondents.
LOTEMPIO P.C. LAW GROUP, BUFFALO (BRIAN KNAUTH OF COUNSEL), FOR PLAINTIFF-APPELLANT. RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (CORY J. WEBER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
LOTEMPIO P.C. LAW GROUP, BUFFALO (BRIAN KNAUTH OF COUNSEL), FOR PLAINTIFF-APPELLANT.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (CORY J. WEBER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the amended complaint insofar as the amended complaint, as amplified by the bill of particulars, alleges that defendants had constructive notice of a recurring dangerous condition, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when she slipped and fell on ice on a sidewalk at property owned or managed by defendants. Prior to the incident, plaintiff had been providing home health care for a tenant at the property. Plaintiff fell after she left that tenant's apartment. Defendants moved for summary judgment dismissing the amended complaint, and Supreme Court granted the motion. Plaintiff appeals.
At the outset, we note that plaintiff contends on appeal only that the court erred in granting the motion insofar as the amended complaint, as amplified by the bill of particulars, alleges that defendants had constructive notice of a recurring dangerous condition, and plaintiff has therefore abandoned any other theories of liability (see Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ). It is well settled that " ‘[a] defendant who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition’ " ( Wesolek v. Jumping Cow Enters., Inc. , 51 A.D.3d 1376, 1378, 857 N.Y.S.2d 859 [4th Dept. 2008] ).
Even assuming, arguendo, that defendants met their initial burden on the motion (see generally Navetta v. Onondaga Galleries LLC , 106 A.D.3d 1468, 1468-1469, 964 N.Y.S.2d 835 [4th Dept. 2013] ), we conclude that plaintiff raised a triable issue of fact whether defendants had actual knowledge of an ongoing and recurring dangerous condition on the premises (see Black v. Kohl's Dept. Stores, Inc. , 80 A.D.3d 958, 960-961, 914 N.Y.S.2d 469 [3d Dept. 2011] ). In opposition to the motion, plaintiff submitted, inter alia, the deposition testimony of the tenant that she had treated on the day of the incident. The tenant testified that, "basically[,] what happens is there's a lot of runoff from the ground over here. When the snow melts the whole area gets flooded and then it freezes, and then you have a solid sheet of ice pretty much over these last few blocks of the sidewalk and then down in the end, right at the end where the parking lot meets the sidewalk. I've actually contacted management many times in regards to that issue." The tenant further testified that, when he contacted the property manager on such occasions prior to the incident, he was told that there was nothing that could be done because "the snow melts, thaws and freezes, and there's nothing they can do about water." He also noted that he had been living at the property for 11 years, and no steps had been taken during that time to eliminate water from pooling on the sidewalk. We agree with plaintiff that the recurring dangerous condition theory was "readily discernable" from the allegations set forth in her bill of particulars ( Shanoff v. Golyan , 139 A.D.3d 932, 934, 34 N.Y.S.3d 78 [2d Dept. 2016] ; see generally Byrnes v. Satterly , 85 A.D.3d 1711, 1712, 926 N.Y.S.2d 242 [4th Dept. 2011] ; Da Biere v. Craig , 268 A.D.2d 875, 876, 701 N.Y.S.2d 738 [3d Dept. 2000] ). We further agree with plaintiff that "[t]his evidence, when considered in a light most favorable to plaintiff, was sufficient to meet her burden of raising a factual question concerning whether the recurring nature of the situation put defendant[s] on constructive notice that a dangerous condition existed [on the premises]" ( Black , 80 A.D.3d at 961, 914 N.Y.S.2d 469 ; see Knight v. Sawyer , 306 A.D.2d 849, 849, 762 N.Y.S.2d 458 [4th Dept. 2003] ; Loguidice v. Fiorito , 254 A.D.2d 714, 714, 678 N.Y.S.2d 225 [4th Dept. 1998] ; Columbo v. James River, II, Inc. , 197 A.D.2d 760, 761, 602 N.Y.S.2d 959 [3d Dept. 1993] ). Finally, we cannot conclude, as matter of law, that plaintiff did not fall in the same location as, or in close proximity to, the area affected by the allegedly recurring condition (cf. Chamberlain v. Church of the Holy Family , 160 A.D.3d 1399, 1402, 75 N.Y.S.3d 718 [4th Dept. 2018] ; Carpenter v. J. Giardino, LLC , 81 A.D.3d 1231, 1232-1233, 917 N.Y.S.2d 439 [3d Dept. 2011], lv denied 17 N.Y.3d 710, 2011 WL 4388295 [2011] ). We therefore modify the order accordingly.