Kivlan v. Dake Bros.

255 A.D.2d 782, 680 N.Y.S.2d 293, 1998 N.Y. App. Div. LEXIS 12494

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1998
• Status: Published

Opinions

Spain, J.

Appeal from an order of the Supreme Court (Connor, J.), entered July 3, 1997 in Ulster County, which denied defendant’s motion for summary judgment dismissing the complaint.

On August 8, 1995, plaintiff was injured in a slip-and-fall accident at defendant’s convenience store in the City of Kingston, Ulster County. Plaintiff alleges that she slipped in a puddle of oil, approximately 4 to 5 inches in diameter, on the sidewalk leading to the entrance of the store and fell, sustaining injuries. Plaintiff commenced this action alleging that defendant was negligent in maintaining its property by permitting the oil to remain on the sidewalk. More specifically, plaintiff alleges that defendant had constructive notice due to a recurring condition of oil spots in the parking areas. After issue was joined defendant moved for summary judgment dismissing the complaint contending, inter alia, that plaintiff had failed to demonstrate a prima facie case of negligence. Supreme Court denied the motion. Defendant appeals.

We affirm. “ ‘It is well settled that a property owner is not liable for injuries resulting from a dangerous condition upon property unless the owner created the dangerous condition or had actual or constructive notice of the same’ ” (Herbst v Nevele Country Club, 251 AD2d 864, quoting Palmer v B.O.C.E.S., Onondaga-Cortland-Madison Counties, 236 AD2d 764, 765; see, Lottie v Edwards-Knox Cent. School Dist., 235 AD2d 678; George v Ponderosa Steak House, 221 AD2d 710). While plaintiff need not prove that defendant had actual knowledge of the presence of the particular substance or object (see, Weisenthal v Pickman, 153 AD2d 849, 850-851), plaintiff must demonstrate that defendant either created the condition by its own affirmative act, was aware of a specific condition yet failed to correct it, or was aware of an ongoing and recurring unsafe condition which regularly went unaddressed (see, O’Connor-Miele v Barhite & Holzinger, 234 AD2d 106; Mercer v City of New York, 223 AD2d 688, 689-690, affd 88 NY2d 955). When a property owner has “actual knowledge of the tendency of a particular dangerous condition to reoccur, he is charged with constructive notice of each specific recurrence of that condition” (Columbo v James River, II, Inc., 197 AD2d 760, 761).

Here, plaintiff has established evidence of recurring oil spills and the accumulation of debris in the area where motor vehicles are permitted to park at defendant’s convenience store/ gas station, where motor oil and other automotive fluids are sold. In our view, such evidence raises genuine issues of fact as to whether defendant had actual knowledge of and failed to properly remedy a recurring hazardous condition (see, O’Connor-Miele v Barhite & Holzinger, supra, at 106). The fact that the oil spill in question was on the sidewalk near the entrance to the store and not in the parking area is insignificant, especially in light of the close proximity of that part of the sidewalk to the area where motor vehicles are allowed to park and where oil spills have occurred.

Peters and Graffeo, JJ., concur.