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Anthony D’Amato v. Antonio Vitale, et al Index No.: 516363/2016

January 4, 2021 • Posted By Joseph A. French • Insurance Coverage

            Plaintiff claimed he slipped and fell on ice on exterior stairway steps on defendant’s premises.  Plaintiff claimed defendants negligently maintained the steps.  An awning covered the steps and melting snow fell from the awning on to the steps where it melted and refroze.

             As the proponents of the motion for summary judgment, the defendants had the “burden of establishing prima facie, that they neither created the icy condition nor had actual or constructive notice of it (see Ryan v. Taconic Realty Assoc., 122 AD3d 708,709).  A defendant who has actual knowledge of a recurrent dangerous condition in a specific area can be charged with constructive notice of each specific reoccurrence of the condition (see Agosto v. City of New Rochelle, 114 AD3d 625, 626; Brown v. Linden Plaza Hous. Co., Inc., 36 AD3d 742)”.

             However, defendants failed to establish the snow melting from the awning was not a recurring condition about which they did not have notice.  Consequently, the Second Department affirmed the Trial Court’s denial of defendant’s motion for summary judgment.

             Without evidence that this was not a recurring condition, defendant’s chances of a favorable decision were greatly reduced.

 Joseph A. French