Kaplan v. City of New York , 655 N.Y.S.2d 349 ( 1997 )

Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered on or about May 16, 1996, which denied defendant commercial tenant’s motion for summary judgment dismissing the complaint and cross claims as against it, unanimously affirmed, with one bill of costs.

Issues of fact exist as to whether defendant discharged grease into the building’s sewer system thereby causing an obstruction that caused an overflow of waste water through the fresh air vent onto the sidewalk that, upon freezing, caused plaintiffs fall. Defendant’s claims of lack of notice of the condition and of the inapplicability of the recurrent condition theory are improperly raised for the first time on appeal; in any event, upon the present record, defendant does not conclusively negate knowledge that its operation of a grease-generating restaurant was causing recurring problems with the building’s sewage system (see, Scott v Board of Educ., 193 AD2d 489). Concur—Sullivan, J. P., Rosenberger, Tom and Andrias, JJ.