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Supreme Court, Appellate Division, Second Department, New York.

Ryszard RUTKOWSKI, et al., Appellants, v. 90 MAIN STREET LLC, et al., Respondents.

Decided: May 13, 2002

DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, DANIEL F. LUCIANO, and THOMAS A. ADAMS, JJ. Sullivan Papain Block McGrath & Cannavo, P.C., New York, NY, (Stephen C. Glasser and Thomas J. Deas of counsel), for appellants. Joseph C. Bellard (Carol R. Finocchio, New York, NY, [Susan M. Daly] of counsel), for respondent 90 Main Street LLC. Lawrence M. Rogak, Oceanside, NY, (Renee A. Breitner and Lawrence B. Goodman of counsel), for respondent Vatica Diner, Inc.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Minardo, J.), dated July 17, 2001, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law, with one bill of costs, the motions are denied, and the complaint is reinstated.

The plaintiff Ryszard Rutkowski (hereinafter the plaintiff), fell while delivering bread to the defendant Vatica Diner, Inc. (hereinafter Vatica).   Vatica leased the premises from the defendant 90 Main Street, LLC (hereinafter 90 Main).   The plaintiff alleges that his fall was caused by cracked asphalt and a mixture of water and oil at the base of a steel ramp leading to the back door of the diner, which was poorly lit.

The defendants failed to make a prima facie showing establishing the absence of notice (see Goldman v. Waldbaum, Inc., 248 A.D.2d 436, 669 N.Y.S.2d 669).   The deposition testimony of Vatica's president indicates that both Vatica and 90 Main had actual and constructive notice of the cracked asphalt condition.   According to the testimony, the condition of the asphalt was visible and apparent and had existed for a long enough time before the accident to permit the employees of both defendants to discover and remedy it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774).   Therefore, the defendants are not entitled to summary judgment.

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