MIGLI v. DAVENPORT (1998)

Plaintiffs commenced this action seeking damages for injuries sustained by Nadene Migli (plaintiff) when she allegedly slipped and fell on a patch of black ice in the parking lot of Hiram's Gas & Convenience Store.   Plaintiffs allege that the icy patch formed from the runoff of melted snow where the store's roof lacked a gutter.

Robert Emerson Davenport, Anthony Lanzafam and Michael Glynn, d/b/a Hiram's Gas & Convenience Store, Inc. (defendants), moved for summary judgment dismissing the complaint against them on the ground that they did not create the allegedly defective condition and had no actual or constructive notice of it.   Supreme Court granted the motion in part by dismissing the complaint insofar as it seeks to impose liability on the theories that defendants affirmatively created or had actual notice of the defective condition.   The court denied the motion in part, concluding that issues of fact remain whether defendants had constructive notice of the defective condition.

The court properly denied the motion in part because defendants failed to meet their burden of proving lack of constructive notice (see, Gebo v. Jefferson Lewis Bd. of Coop. Educ. Servs., 248 A.D.2d 1025, 670 N.Y.S.2d 642;  cf., Wright v. Rite-Aid of NY, 249 A.D.2d 931, 672 N.Y.S.2d 548 [decided herewith] ).   Defendants submitted evidence that Davenport was aware that the absence of a gutter caused rain and melting snow to run off the roof and down the slope of the parking lot, causing ice to form during the winter months in the area where plaintiff fell.   From defendants' own 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, 602, 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).

Because defendants failed to meet their initial burden on the motion, it is not necessary to consider the sufficiency of plaintiffs' opposing papers, including the affidavit of plaintiffs' expert meteorologist (see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Gebo v. Jefferson Lewis Bd. of Coop. Educ. Servs., supra).

Order unanimously affirmed with costs.

MEMORANDUM: