Phillips v. Henry B's, Inc.

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 plaintiffs accident and as modified the order is affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking dam

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 [2006]). 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 [2003]; see Anderson v Great E. Mall, L.P., 74 AD3d 1760 , 1761 [2010]). 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, trav

Defendant further contends that the court should have denied the motion in its entirety because plaintiffs 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 plaintiffs 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 [2001]; Hennessy v Palmer Video, 237 AD2d 571 [1997]). Present — Scudder, P.J., Fahey, Bindley, Green and Gorski, JJ.