LOGUIDICE v. FIORITO (1998)

Plaintiff commenced this action to recover damages for injuries he sustained when he slipped and fell on ice near the entrance to defendant Euclid Restaurant.   Plaintiff alleges that the ice formed from the run-off of water from the roof and the overhang above the door.   Defendants moved for summary judgment dismissing the complaint on the ground that they lacked constructive notice of the allegedly dangerous condition.

Defendants met their initial burden of proving lack of constructive notice.   Plaintiff, however, raised triable issues of fact whether defendants had constructive notice of the allegedly dangerous condition, and thus Supreme Court properly denied the motion (see, Columbo v. River, II, Inc., 197 A.D.2d 760, 761, 602 N.Y.S.2d 959).   Plaintiff submitted evidence that defendant Francis Fiorito was aware that the roof was designed without gutters and with a metal drip edge that caused water to run from the roof to the overhang above the door and down to the pavement below.  “From [plaintiff's] * * * submissions, ‘an inference could be drawn that defendant[s] had actual knowledge of a recurrent dangerous condition and therefore could be charged with constructive notice of each specific reoccurrence of the condition’ (Padula v. Big V Supermarkets, 173 A.D.2d 1094, 1096, 570 N.Y.S.2d 850;  see, Camizzi v. Tops, Inc., 244 A.D.2d 1002, 664 N.Y.S.2d 964;  O'Connor-Miele v. Barhite & Holzinger, 234 A.D.2d 106, 650 N.Y.S.2d 717).   Such actual knowledge ‘is qualitatively different from a mere “general awareness” that a dangerous condition may be present’ (Chin v. Harp Mktg., 232 A.D.2d 601, 648 N.Y.S.2d 697, quoting Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795)” (Migli v. Davenport, 249 A.D.2d 932-933, 672 N.Y.S.2d 551;  see, McLaughlan v. Waldbaums, Inc., 237 A.D.2d 335, 654 N.Y.S.2d 406).

Order unanimously affirmed with costs.

MEMORANDUM: