Opinion
September 30, 1994
Appeal from the Supreme Court, Erie County, Wolf, Jr., J.
Present — Balio, J.P., Lawton, Wesley, Doerr and Davis, JJ.
Order unanimously modified on the law and as modified affirmed with costs to plaintiff in accordance with the following Memorandum: Because the record, when viewed most favorably to plaintiff, establishes that defendant Tops Markets, Inc. (Tops) had notice of the likelihood of criminal conduct by third parties that would endanger the safety of its patrons, Supreme Court erred in granting its motion for summary judgment (see, Waters v New York City Hous. Auth., 69 N.Y.2d 225, 228; see generally, Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519; Newell v. Swiss Reassurance Co., 181 A.D.2d 505, 506; Carroll v. Ar De Realty Corp., 167 A.D.2d 216). The summary judgment motion of defendant Searcy Plaza Associates (Searcy) was properly granted because there was no evidence that Searcy had actual or constructive notice of such conduct (see, Cercone v. Norstar Bank, 199 A.D.2d 987, lv denied 83 N.Y.2d 756). We modify the order appealed from, therefore, by denying Tops' motion for summary judgment.