Opinion
306670/11
02-26-2015
Deborah Baez AND DANIEL BAEZ, Plaintiff(s), v. Milutin Glavatovic, MIRSAD M. GLAVATOVIC AND THE CITY OF NEW YORK, Defendant(s).
Plaintiffs' Counsel: Bamundo, Zwal & Schermerhorn, LLP Counsel for the City: New York City Law Department Counsel for Glavatovic: Mintzer, Sarowitz & Meyers
Plaintiffs' Counsel: Bamundo, Zwal & Schermerhorn, LLP
Counsel for the City: New York City Law Department
Counsel for Glavatovic: Mintzer, Sarowitz & Meyers
Mitchell J. Danziger, J.
In this action for alleged negligence with respect to the maintenance of the public sidewalk, defendant THE CITY OF NEW YORK (The City) moves seeking an order granting it summary judgment thereby dismissing the complaint and any cross-claims against it on grounds that, inter alia, the failure to remove snow at the location of plaintiff DEBORAH BAEZ' (Deborah) alleged accident cannot constitute negligence as a matter of law insofar as the time period between the last snow storm and the date of Deborah's accident was insufficient to allow it to remove the snow thereat. Defendants MILUTIN GLAVATOVIC and MIRSAD M. GLAVATOVIC (Glavatovic) oppose the City's motion averring that whether the three day period between the cessation of the snow storm immediately preceding Deborah's alleged accident and her accident was insufficient to allow the City to remove the snow thereat is a question of fact precluding summary judgment. Glavatovic also moves for an order granting him summary judgment with respect to the complaint and all cross-claims asserted against him on grounds that he had no obligation to remove any snow at the location of Deborah's accident and that even if he did, he had no prior notice of the defective condition alleged. Plaintiffs oppose Glavatovic's motion, asserting questons of fact preclude summary judgment. Specifically, plaintiffs submit that a version of the evidence establishes that because Glavatovic created the condition upon which Deborah alleges to have fallen, he is liable for the instant accident and that, thus, extant questions of fact preclude summary judgment.
Milutin Glavatovic and Mirsad Glavatovic are the same person.
For the reasons that follow hereinafter, the City's motion is granted and Glavatovic's motion is denied.
The instant action is for alleged personal injuries allegedly sustained by Deborah when she allegedly tripped and fell on ice. Specifically, plaintiff's complaint alleges that on December 30, 2010, while traversing the sidewalk abutting premises located at 1836 Fowler Avenue, Bronx, NY, Deborah slipped and fell on an icy condition existing thereat. Plaintiffs further allege that defendants owned and maintained the sidewalk, were negligent in failing to maintain it in a reasonably safe condition, and that such negligence caused Deborah's accident and the inuries resulting therefrom. Plaintiff DANIEL BAEZ, Deborah's husband, asserts a derivative loss of services claim.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). Once movant meets the initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562).
On September 14, 2003, with the passage of § 7-210 of the New York City Administrative Code, maintenance and repair of public sidewalks and any liability for a failure to perform the same, was shifted, with certain exceptions, to owners whose property abutted the sidewalk (Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009], revd on other grounds 14 NY3d 779 [2009]; Klotz v City of New York, 884 AD3d 392, 393 [1st Dept 2004]); Wu v Korea Shuttle Express Corporation, 23 AD3d 376, 377 [2d Dept 2005]).
Specifically, §7-210 states, in pertinent part, that [i]t shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition. . . [, that] the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. . . [, that][f]ailure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk. . . [,and that ] [t]his subdivision shall not apply to one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes.
As noted above, prior to that the passage of § 7-210, the duty to repair and maintain the public sidewalks in a reasonably safe condition rested with the municipality within which the sidewalks were located (Ortiz at 24; Weiskopf v City of New York, 5 AD3d 202, 203 [1st Dept 2004]; Belmonte v Metropolitan Life Insurance Company, 304 AD2d 471, 474 [1st Dept 2003]). Accordingly, before § 7-210, an abutting landowner had no duty to maintain the public sidewalk and was not liable for an accident occurring thereon unless he/she created the dangerous condition alleged or derived a special use from the sidewalk (Weiskopf at 203; Belmonte at 474). Accordingly, whereas tort liability for an accident involving a defective condition on a public sidewalk was once premised only upon the abutting owner's affirmative acts in making the sidewalk more hazardous, i.e., causing or creating a dangerous condition (Ortiz at 24), with the enactment of § 7-210, it is now well settled that an owner of property abutting a public sidewalk is liable for a dangerous condition upon said sidewalk even in the absence of affirmative acts (id. at 25; Martinez v. City of New York, 20 AD3d 513, 515 [2d Dept 2005]). Despite the enactment of § 7-210, the City nevertheless remains responsible to maintain certain sidewalks such as those abutting "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes" (New York City Administrative Code § 7-210[c]), and is liable for defects existing on the sidewalks abutting exempt properties or in cases where the City created the dangerous condition alleged, or enjoyed a special use of the area upon where the defect existed ( Yarborough at 726). Additionally, the City remains liable to maintain the curbs abutting public sidewalks because § 7-210 only shifted the responsibility of sidewalk maintenance to an abutting landowner, which is defined as "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians" (New York City Administrative Code § 19-101(d); see also Ascencio v New York City Hous. Auth., 77 AD3d 592, 593 [1st Dept 2010] [Defendant, abutting property owner granted summary judgment in an action arising from an accident on a defective portion of the sidewalk when the evidence established that the accident occurred on the curb.]; Garris v City of New York, 65 AD3d 953, 953 [1st Dept 2009]).
The foregoing is also true with respect to the removal of snow (Klotz at 357-358). Stated differently, prior to the enactment of 7-210 in 2003, as with the duty to maintain public sidewalks in a reasonably safe condition, the obligation to remove snow and ice from public sidewalks lay with the municipality and not the owner of the property abutting the public sidewalk (id. ["In New York City, prior to September 14, 2003, there were no such statutes (see Administrative Code of City of New York § 7—210, as added by Local Laws 2003, ch. 49, § 1 [imposing tort liability for accidents occurring on or after September 14, 2003, on certain abutting landowners, for failure to maintain a sidewalk in a reasonably safe condition, including negligent failure to remove snow and ice.])]; Harris v City of New York, 122 AD3d 906, 907 [2d Dept 2014] [ "A property owner is under no duty to pedestrians to remove ice and snow that naturally accumulates upon the sidewalk in front of the premises unless a statute or ordinance specifically imposes tort liability for failing to do so. No such provision was in place in New York City prior to September 14, 2003, the effective date of a revision to the Administrative Code of the City of New York imposing liability on certain abutting landowners" (internal citations and quotation marks omitted).]; Sanders v City of New York, 17 AD3d 169, 169 [1st Dept 2005]; [Noting that in 2000, an abutting property owner had no duty to remove snow from the public sidewalk abutting his/her property.]; Rios v Acosta, 8 AD3d 183, 184 [1st Dept 2004] ["For well over a century, it has been the common law of this State that an owner of real property, even if required by municipal ordinance to remove snow or ice from a public sidewalk in front of his premises, is not liable in tort for injuries sustained by a pedestrian who slips and falls on a natural accumulation of snow or ice on that sidewalk."]). Thus, prior to 2003, an abutting property owner was liable for an accident on snow or ice on the sidewalk abutting his/her property only if "the owner's attempts at snow removal made the sidewalk more hazardous is the owner exposed to tort liability" ( Rios at 184; Sanders at 169; Klotz at 358). In New York City, and with the enactment of 7-210, it is now well settled that an abutting property owner, "has a duty to keep a sidewalk abutting its property sufficiently clear of snow and ice so that the sidewalk is maintained in a reasonably safe condition ( McKenzie v City of New York, 116 AD3d 526, 527 [1st Dept 2014] [internal quotation marks omitted]; Schron v Jean's Fine Wine & Spirits, Inc., 114 AD3d 659, 660 [2d Dept 2014 ["The owner or lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so. Section 7—210 of the Administrative Code of the City of New York (hereinafter section 7—210) places such a duty on commercial property owners, and imposes tort liability for injuries arising from noncompliance)" (internal citations and quotation marks omitted).]).
Despite the advent of § 7-210, owners of exempt property remain liable for injuries caused by defective sidewalks if they caused or created a dangerous condition thereon or derived a special use from the public sidewalk (Meyer v City of New York, 114 AD3d 734, 734-735 [2d Dept 2014] [Court granted motion by defendants for summary judgment on grounds that the property was exempt under § 7-210 and because they established that they neither created the condition alleged to have caused plaintiff's accident nor did they derive a special use from the public sidewalk.])
With respect to special use, the doctrine, authorizes the imposition of liability against any entity that installs an object onto the sidewalk or roadway, for injuries arising out of circumstances where the entity has been permitted to interfere with a street solely for private use and convenience which is in no way connected with the public use. Liability may [thus] be imposed since the special user has exclusive access to and control of the special use structure or appurtenance. This creates a duty to properly maintain the structure or appurtenance in a reasonably safe condition (Posner v New York City Transit Authority (27 AD3d 542, 544 [2d Dept 2006]; Balsam v Delma Eng'g Corp., 139 AD2d 292, 298 [1st Dept 1998]). Thus, "[t]hough not ordinarily liable for the repair and maintenance of the sidewalk abutting his premises, an owner is liable if he creates the condition which causes the injury or if the injury is caused by a defect in that portion of the sidewalk which confers a benefit to him as a special use" (Santorelli v City of New York, 77 AD2d 825, 826 [1st Dept 1980]; Nickelsburg v City of New York, 263 AD 625, 626 [1st Dept 1942]). Moreover, the proponent of liability premised on special use must establish that "the special use or benefit of the abutting owner is itself defective or in disrepair, or where the defect in the adjoining sidewalk is directly caused by the special use or benefit" (Santorelli at 826; (McCutcheon v National City Bank of NY, 265 AD 878, 878 [2d Dept 1942] ["There was no defect in the vault cover or the metal strip which caused the accident.], affd 291 NY 509 [1943]).
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Thus, as is the case with any action sounding in premises liability, an owner of real property abutting a public sidewalk is now liable if it is proven that he or she created the dangerous condition, had prior actual or constructive notice of its existence (Weinberg v 2345 Ocean Associates, LLC, 108 AD3d 524, 525 [2d Dept 2013]; Anastasio v Berry Complex, LLC, 82 AD3d 808, 809 [2d Dept 2011]), or enjoyed a special use of the public sidewalk (Terilli v Peluso, 114 AD3d 523, 523 [1st Dept 2014]; Rodriguez v City of Yonkers, 106 AD3d 802, 803 [2d Dept 2013]). As in any case premised on the negligent maintenance of real property, it is well settled that a prerequisite for the imposition of liability for a dangerous condition within, or, on real property, is a defendant's occupancy, ownership, control or special use of the premises (Balsam v Delma Engineering Corporation, 139 AD2d 292, 296-297 [1st Dept. 1998]; Hilliard v Roc-Newark Assoc., 287 AD2d 691, 693 [2d Dept 2001]). Absent evidence of ownership, occupancy, control, or special use, liability cannot be imposed (Balsam at 297).
More specifically, with regard to liability for a dangerous snow and/or ice condition in and around a premises, it is well settled that there can be no liability to the owner of such premises for dangerous conditions resulting from the accumulation of snow and ice absent evidence that the owner, in electing to remove snow created a hazardous condition or exacerbated a natural one (Gwinn v Christina's Polish Restaurant, Inc., 117 AD3d 789, 789 [2d Dept 2014]; Wei Wen Xie v Ye Jiang Yong, 111 AD3d 617, 618 [2d Dept 2013]; Cotter v Brookhaven Memorial Hosp. Medical Center, Inc., 97 AD3d 524, 524 [2d Dept 2014]) or had notice - actual or constructive - of the defective condition alleged and evidence that a reasonable period of time elapsed between the accident and last episode of precipitation (Laster v Port Authority of New York and New Jersey, 251 AD2d 204, 205 [1st Dept 1998]; Soboleva v Gojcaj, 238 AD2d 170 [1st Dept 1997]; Urena v New York City Transit Authority, 248 AD2d 377, 378 [2d Dept 1998]; Robles v City of New York, 255 AD2d 305, 306 [2d Dept 1998]; Bertman v Board of Managers of Omni Court Condominium I, 233 AD2d 283, 283-284 [2d Dept 1996]). The foregoing is equally true with regard to municipal liability for a dangerous snow and ice condition which is alleged to have caused injury. Thus, the sine qua non to municipality liability for a dangerous snow/ice condition upon property it is required to maintain is prior notice ( Otero v City of New York, 248 AD2d 689, 690 [2d Dept 1998]), creation or exacerbation of a dangerous condition ( Robles at 306) and a reasonable period of time between the last storm and the accident alleged ( Gonzalez v City of New York, 168 AD2d 541, 541 [2d Dept 1990]; Valentine v City of New York, 86 AD2d 381, 383 [1st Dept 1982], affd 57 NY2d 932 [1982]).
For purposes of constructive notice, evidence that it had snowed prior to plaintiff's accident is, by itself, insufficient to establish constructive notice of a dangerous ice condition's existence (Simmons v Metropolitan Life Insurance Company, 84 NY2d 972, 973-974 [1994] ["The testimony that it had snowed a week prior to the accident was insufficient to establish notice because no evidence was introduced that the ice upon which plaintiff allegedly fell was a result of that particular snow accumulation."]; Grillo v New York City Transit Authority, 214 AD2d 648, 649 [2d Dept 1995 [same]). Instead, a plaintiff seeking to establish constructive notice of an ice condition with proof that it had snowed prior to the accident must establish that the condition alleged was caused by the prior storm (Simmons at 973-974; Grillo at 649; Lenti v Initial Cleaning Services, Inc., 52 AD3d 288, 289 [1st Dept 2008]; Steo v New York University, 285 AD2d 420, 421 [1st Dept 2001]). Stated differently, a defendant seeking to establish constructive notice of an icy condition by asserting that its origins were the result of weather conditions preceding the accident, must establish the origins of such condition (Baum v Knoll Farm, 259 AD2d 456, 456 [2d Dept 1999]; Fuks v New York City Transit Authority, 243 AD2d 678, 678-679 [2d Dept 1997]; DeCurtis v T.H. Associates, 241 AD2d 536, 537 [2d Dept 1997]; Denton v L.M. Klein Middle School, 234 AD2d 257, 258 [2d Dept 1996]). This is because, by definition, constructive notice requires a finding that the condition alleged existed for a sufficient period of time to enable a defendant to discover and remedy the same (Baum at 456). Notwithstanding the foregoing, constructive notice can, of course, be established by evidence that the condition existed for a prolonged period of time such as eyewitness accounts (Ralat v New York City Housing Authority, 265 AD2d 185 [1st Dept 1999] ["Furthermore, in their sworn affidavits submitted on renewal, plaintiff's witnesses both describe having observed plaintiff slip and fall on a large patch of ice. Significantly, they also stated that the icy problem on the sidewalk existed for at least a week prior to plaintiff's accident, and that they had observed other tenants from the Edenwald Housing Project slipping and falling on ice in the same area." (Internal quotation marks omitted)]), or by the condition of the ice itself, evincing that it is longstanding and its proximity to defendant's property ( Gonzalez v American Oil Co., 42 AD3d 253, 256 [1st Dept 2007] ["From these facts—the large size of the ice patch, its consistency as well as its close proximity to the store's front door, and defendants' failure to perform any meaningful maintenance—one could reasonably conclude that defendants should have discovered this condition well before plaintiff's fall and remedied it."]).
While climatological reports can be used to establish the weather conditions at the time of the accident alleged, including the existence of snow (see e.g. Bernstein v City of New York, 69 NY2d 1020, 1021 [1987] [defendant's evidence as to weather conditions, consisted, in part of meteorological data]; Clarke v Pacie, 50 AD3d 841, 842 [2d Dept 2008] [same]; Ralat at 187 [same]). However, whether such reports establish the origin, formation, and duration of a particular condition is a factual analysis and is wholly dependent on the facts of each case. For example, in Rivas v New York City Housing Authority (261 AD2d 148, 148 [1st Dept 1999]), the court held that using climatological data, plaintiff established that defendant had constructive notice of the defect alleged, namely, a patch of ice. The court noted that the climatological reports established that it had snowed several days prior to plaintiff's accident, that some snow remained on the ground thereafter, and that the temperatures remained below freezing, which evidence was sufficient to establish that a defendant had constructive notice of the ice patch alleged and had sufficient to time to discover and remedy the same (id.). Conversely, the court in Womble v NYU Hospitals Center (123 AD3d 469, 469 [1st Dept 2014), held that climatological data submitted failed that a storm was in progress when it lacked a key explaining the data codes used therein.
Generally, there is no duty to abate a snow or ice condition while a storm is in progress and, generally, no liability will be imposed for an accident occurring during a storm (Fernandez v City of New York, 2015 NY Slip Op 01410, *1 [2d Dept 2015]; Harmitt v Riverstone Associates, 123 AD3d 1089, 1089 [2d Dept 2014]; Pacheco v Fifteen Twenty Seven Associates, L.P., 275 AD2d 282, 284 [1st Dept 2000]; Thomas v First Baptist Church of Westbury, NY, Inc., 245 AD2d 501, 501 [2d Dept 1997]). The rationale being, of course, that snow removal efforts in the midst of falling snow and high winds is rather fruitless (Powell v MLG Hillside Associates, 290 AD2d 345, 345 [1st Dept 2002]). In addition, what constitutes a reasonable time after the cessation of a storm sufficient to impose snow removal efforts is often a question of fact (Rodriguez v Woods, 121 AD3d 474, 476 [1st Dept 2014] ["Once there is a period of inactivity after cessation of a storm, it becomes a question of fact as to whether the delay in commencing the cleanup was reasonable."]; Tucciarone v Windsor Owners Corp., 306 AD2d 162, 163 [1st Dept 2003] ["The snowfall having ceased for several hours by the time of plaintiff's alleged accident on the morning of March 7, 1999, there is at least an issue of fact as to whether any delay by appellants in commencing their cleanup was reasonable."]; Powell at 346 ["Once there is a period of inactivity after cessation of the storm, it becomes a question of fact as to whether the delay in commencing the cleanup was reasonable."]).
However, this issue can be, and has been decided as a matter of law, when the evidence so warrants. With respect to municipal liability, summary judgment has generally been granted, and the issue of reasonableness has been resolved as a matter of law when the storm preceding an accident is severe (Rodriguez at 476). In Valentine, for example, the court vacated a jury verdict in favor of plaintiff which he obtained at trial upon proof that the time between plaintiff's fall and the cessation of the storm which created the condition alleged was insufficient as a matter of law (id. at 388). Specifically, the court noted that because of "the severity [of] the ice storm, the second worst to strike this area in 50 years, [which] was followed by temperatures which never rose above 32 degrees Fahrenheit and reached a low of 17 degrees Fahrenheit on the morning of the accident," the 30 hours between the storm's cessation and plaintiff's accident was insufficient as a matter of law to impose an obligation upon the City of New York to clear the snow at the location of plaintiff's accident (id. at 384). Significantly, on the issue of the reasonableness between the cessation of the storm and how long thereafter snow removal efforts were undertaken the court in Valentine found it dispositve that the City of New York had not cleaned the area of plaintiff's alleged fall because it had so much snow to clear and over a wide area such that its resources were limited (id. at 382). Specifically, the court noted that [t]The city's snow removal operations, which extend over 6,401 miles of streets and 11,420 miles of sidewalk, broken down into 58 snow removal districts, began on December 16 and continued at least until December 21. The snow removal district in which Murdock Avenue is situated consists of 120 miles of streets and 240 miles of sidewalks, abutted by as many as 19,483 dwelling units. In the three days from December 17 to December 19, the city assigned 35, 25 and 33 men, respectively, to snow removal duty in this district alone. Working overtime they used as many as 32 pieces of snow removal equipment in one day, including plows and front-end loaders, and spread, in the three-day period, 1,421 tons of salt (id.). Similarly, in Weisfeld v City of New York (282 AD 739, 739 [2d Dept 1953]), the municipal defendant was granted summary judgment when the court concluded that an accident occurring five days after the cessation of a snow storm, during which 16.7 inches of snow fell, could not cast defendant in liability because delay in clearing the snow was not unreasonable. In Rapoport v City of New York (281 AD 33, 34 [1st Dept 1952]), the court vacated the jury's verdict upon evidence that plaintiff's accident occurred less than ninety hours after the termination of the record-breaking blizzard of December 26, 1947, during which there fell 25.8 inches of snow and 2.67 inches of other precipitation. It was the greatest snowfall ever recorded in the history of the city's weather bureau, which began to function in the year 1870. During the ninety hours between the end of the snowfall and the time of plaintiff's accident, the temperature was above the freezing level for a total of only six hours. The testimony showed that during this period the sanitation department and the police department of the city had been used not only to cope with the problem of snow removal, but to aid with the resultant health and manifold safety problems.
Based on the foregoing, the court held that the ninety-hour delay in clearing the snow from the location of plaintiff's accident was not unreasonable as a matter of law (id.).
With regard to non-municipal defendants, summary judgment has also been routinely granted upon conclusion that the delay from the cessation of the storm and the accident alleged was not unreasonable as a matter of law. Much as in the case of municipal liability the summary resolution of a non-municipal defendant's liability hinges on the severity of the storm preceding the accident alleged and or the time elapsing thereafter but before the accident. In McAuley v United Cigar Stores Company of America, Inc. (204 AD 356, 356-357 [1st Dept. 1923]), for example, the court vacated the jury's verdict against defendant, the owner of a store, at the entrance to which, plaintiff allegedly fell on an accumulation of snow and ice because only six hours had elapsed between the cessation of a heavy snow storm and plaintiff's alleged accident and because the accident occurred at a time - 11PM - when snow removal efforts would not normally be undertaken. In Whitt v St. John's Episcopal Hospital (258 AD2d 648, 648-649 [2d Dept 1999]), the court granted defendant's motion for summary judgment when the evidence established that plaintiff's fall on ice within defendant's premises occurred in the early morning and only a few hours after the cessation of a snow storm, which storm ceased late in the evening. In Fuks, the court granted defendant's motion for summary judgment when plaintiff's fall occurred only an hour after the cessation of a 10 inch snowfall (id. at 678). In Wall v Village of Mineola (237 AD2d 511, 512 [2d Dept 1997]), the court found that the 45 minutes between plaintiff's fall and the cessation of a snow storm was insufficient to impose an obligation to clear the snow within defendant's property insofar as the precipitation was "a weather record for the Village of Mineola."
While there is no obligation to abate a snow/ice condition until a storm ceases, "even if a storm is ongoing, once a property owner elects to remove snow, it must do so with reasonable care or it could be held liable for creating or exacerbating a natural hazard created by the storm" (Cotter at 524; Harmitt at *1; Arashkovitch v City of New York, 123 AD3d 853, *1 [2d Dept 2014]).
The City's Motion
The City's motion is hereby granted insofar as the evidence it tenders establishes that although responsible for snow removal at the location of the instant accident, given the severity of the storm preceding Deborah's accident - which deposited as much as twenty inches of snow in two days - the three-day period between the storm's cessation and Deborah's accident was insufficient to impose snow removal obligations upon the City as a matter of law.
In support of its motion, the City submits the transcript of Deborah's 50-h hearing wherein she testified, in pertinent part, as follows. On December 30, 2010, at approximately 8PM, she slipped and fell on a patch of ice located on the sidewalk abutting the driveway of premises located at 1836 Fowler Avenue, Bronx, NY (1836). Deborah, who was then residing at 1852 Fowler Avenue, was walking home, having just left Rite Aid Pharmacy about a block away. As she traversed Fowler Avenue, she noted that the two feet of snow that had fallen on December 26, 2010 had been piled on the sides of the sidewalk and that there existed a path through the snow. As she reached the sidewalk located in front of the driveway at 1836, a three-family home, she suddenly slipped and fell. While she had not seen any ice prior to falling, once on the floor she nottced that the area upon where she had just slipped was covered with a thin sheet of transparent ice.
The City also submits the transcript of Damon Rollins' (Rollins) deposition, wherein he testified, in pertinent part, as follows. In 2010, Rollins was employed by the New York City Department of Sanitation (NYCDOS) as a supervisor, whose duties included ensuring the removal of snow and collection of garbage on the City's streets. Rollins testified that on the December 26, 2010, in response to snowfall, NYCDOS dispatched plows and spreaders to clean all primary routes within District 11, which district would include Fowler Avenue. On December 27, 2010, NYCDOS dispatched the same equipment as well as front end loaders to remove snow from primary, secondary and tertiary routes. When it snowed, NYCDOS had a procedure in place where they would prioritize snow removal efforts as follows. First, they would remove snow from primary routes, which are the highways. NYCDOS would then remove snow from secondary routes, which were streets leading to highways and then from tertiary routes, which are side streets. Depending on staffing, NYCDOS would then remove snow from crosswalks and those sidewalks abutting hydrants, bus stops, churches and school. With respect to all other sidewalks, NYCDOS rarely removed snow from the same and when it did, it contracted the task to third parties. With respect to removal of snow from the sidewalks on Fowler Avenue, Rollins was unable to state whether NYCDOS engaged in any such efforts at that location subsequent to December 30, 2011.
The City submits a transcript of Glavatovic's deposition, wherein he testified, in pertinent part, as follows. In December 2010, Glavatovic both owned and resided within 1836, a three-family home. With regard to 1836's maintenance, which included the removal of snow from the sidewalk abutting the property, Glavotovic would do it all himself. In December 2010, Glavatovic recalls that it snowed significantly. In fact, Glavatovic described the storm at that time as "one of the biggest snow that I experienced in my life [sic]." As a result of the storm, he recalls using his snowblower and shovel to clear the snow from the sidewalk abutting 1836. 1836 also had a driveway, which also abutted the sidewalk and led to a garage, and which was solely used by Glavatovic to access the garage with his cars. As was his custom, when he removed the snow in December 2010, he piled the same on the sides of the sidewalk. After he cleared the snow, at some point which he couldn't recall, Glavatovic noticed that there was ice on the sidewalk abutting his driveway. He, thus, put down salt to ameliorate the condition. On December 30, 2010, Glavatovic came home from work at 2PM and did not see any ice on the sidewalk abutting his property. Furthermore, he was not made aware of Deborah's accident until the next day.
Lastly, the City submits climatological reports which evince that on December 26, 2010, it snowed between 10.2 and 12.2 inches in New York City. The snow continued to fall through December 27, 2010, with 3.2 - 7.8 inches falling that day. Thus, from December 26-December 27, parts of New York City received almost 14 inches of snow while others received almost 20 inches. The reports further indicate that on the 28th, the 29th, and the 30th of December, the temperatures dipped below freezing.
Based on the foregoing, the City establishes prima facie entitlement to summary judgement. As discussed above, the issue of whether the time between a storm's cessation and an accident is sufficient to impose an obligation upon a municipality to clear snow from its sidewalks can and has been decided as a matter of law. The relevant inquiry is whether the storm preceding an accident is severe enough so as to make any delay in clearing snow reasonable as a matter of law ( Rodriguez at 476). Here, Glavatovic testified that this storm was so severe, that it was the biggest storm he had ever seen. Moreover, the climatological reports indicate that parts of New York City were afflicted with 20 inches of snow three days prior to Deborah's accident and that the temperatures dipped below freezing everyday thereafter. Thus, while it is true that Glavotovic rather than the City cleared the sidewalk abutting 1836 prior to Deborah's accident - which sidewalk, insofar as it abutted an owner occupied three-family home, the City was obligated to maintain under 7-210 - it is also true that in the days preceding the accident the City was actively removing snow from primary, secondary and tertiary routes. Thus, as was the case in Weisfeld (282 AD 739, 739), where the failure to clear snow within five days of the cessation of snow storm, during which 16.7 inches of snow fell and Rapoport (281 AD 33, 34), where the failure to clear snow within ninety hours after a storm depositing almost 20 inches of snow, here, the City's failure to clear the sidewalks abutting 1836 within the three days of the snow's cessation was not unreasonable as a matter of law. Thus, the City establishes prima facie entitlement to summary judgment.
Nothing submitted by Glavatovic in opposition is sufficient to raise an issue of fact sufficient to preclude summary judgment. In fact, Glavatovic submits no additional evidence and only assails the propriety of determining the City's liability as matter of law. Contrary to Glavatovic's assertions, however, while it is true that the issue herein decided - the reasonableness of any delay in ameliorating a snow condition - is often one for the trier of fact (Rodriguez, 121 AD3d 474, 476; Tucciarone, 306 AD2d 162, 163; Powell 290 AD2d 345, 346), as discussed above, here, the record warrants summary determination as a matter of law. Thus, The City's motion is granted.
Glavatovic's Motion
Glavatovic's motion seeking an order granting him summary judgment is denied inasmuch as questions of fact are extant with respect to whether his snow removal efforts caused and created the condition alleged to have caused Deborah's accident and whether he had constructive notice of such condition prior to her fall.
In support of his motion, Glavatovic submits much of the same evidence submitted by the City and thus, there is no need to reiterate the same.
Based on the evidence submitted, however, Glavatovic fails to establish prima facie entitlement judgment with respect to his defense that he bears no liability for this accident because in December 2010, 1836 was an exempt property under 7-210, such that he bore no responsibility for the removal of snow from the sidewalks abutting it. It is true, as argued by Glavatovic, that despite the enactment of § 7-210, the City nevertheless remains responsible to maintain certain sidewalks such as those abutting "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes" (New York City Administrative Code § 7-210[c]), is liable for defects existing on the sidewalks abutting exempt properties (Yarborough at 726), and that, here, 1836 - his property - was indeed exempt. However, it is also true that according to Deborah, she fell on the sidewalk abutting 1836's driveway, which driveway Glavatovic testified he used to access the garage solely used by him. Thus, since it is well settled that "[t]hough not ordinarily liable for the repair and maintenance of the sidewalk abutting his premises, an owner is liable if he creates the condition which causes the injury or if the injury is caused by a defect in that portion of the sidewalk which confers a benefit to him as a special use" (Santorelli, 77 AD2d 825, 826; Nickelsburg, 263 AD 625, 626), here, deriving a special use from the sidewalk which abuts his driveway, despite 7-210, and contrary to his assertion, Glavatovic remained responsible to maintain the sidewalk - the very sidewalk upon which Deborah alleges to have fallen. For this reason, Glavatovic fails to establish prima facie entitlement to summary judgment on grounds that he had no obligation to remove snow from the sidewalk at issue.
Notwithstanding the foregoing, Glavatovic does establish prima facie entitlement to summary judgment on grounds that he properly ameliorated the snow condition alleged to have caused Deborah's fall and because he had no notice of the icy condition upon which she alleges to have fallen.
As noted above, with respect to snow removal, the relevant inquiry is whether the sidewalk was sufficiently cleared of snow and ice so that it was reasonably safe (Mckenzie at 527), and if in removing snow, such efforts create a hazardous condition or exacerbate a naturally occurring one (Cotter at 524; Harmitt at *1; Arashkovitch at *1). Here to the extent that Glavactovic testified that he removed all the snow that had fallen from the storm using a snowblower, piled the same along the sides of the sidewalk, and salted the ice he subsequently saw thereafter, his testimony establishes that he neither created the condition alleged to have caused Deborah's accident nor exacerbated a naturally occurring one. Moreover, since liability also hinges on notice - actual or constructive - of the defective condition alleged and evidence that a reasonable period of time has elapsed between the accident and last episode of precipitation ( Laster at 204, 205; Soboleva, at 170; Urena at 378; Robles at 306; Bertman v Board of Managers of Omni Court Condominium I at 283-284), here, where Deborah testified that she did not see the ice upon which she fell until after her fall and Glavatovic testified that he did not see any ice on the date of the accident when he came home from work, Glavatovic negates notice and thus establishes prima facie entitlement to summary judgment.
Plaintiffs' opposition, however, raises an issue of fact not only with respect to whether Glavatovic had constructive notice, but with respect to whether his snow removal efforts caused and created the condition alleged to have caused Deborah's accident.
Saliently, plaintiffs submit a report from Irving U. Ojalvo (Ojalvo), a Professional Engineer, who upon a review of the evidence described above as well as photographs of the condition alleged opines, within a reasonable degree of engineering certainty, that the ice upon which she fell was caused by the melting and subsequent re-freezing of the snow piled on and around the sidewalk abutting 1836, which snow was put there by Glavatovic. Ojalvo further testified that said ice would have existed at this location despite the fact that the temperatures rose above freezing.
Based on the foregoing, plaintiffs establish that not only did Glavatovic's snow removal efforts create the condition which is alleged to have caused Deborah's fall, but that the icy condition existed, despite temperatures rising above freezing, for a protracted period of time. Thus, plaintiffs evidence raises issues of fact with respect to whether this condition was caused or created by Glavatovic and whether it existed for a sufficient length of time such that he could be charged with constructive notice fo the same.
Contrary to Glavatovic's contention, Bi Chan Lin v Po Ying Yam, 62 AD3d 740, 741 [2d Dept 2009]), does not avail him. While it is true that "[e]vidence that melting snow on the defendants' property on the sides of the defendants' driveway may have run off onto the sidewalk does not indicate that the defendants made the naturally occurring conditions more hazardous" (id.), the principal promulgated by Lin, is inapplicable here. Specifically, the principal in that case applies in cases, unlike this one, where the abutting property owner has no obligation to remove snow from a sidewalk, elects not to remove snow and the snow subsequently melts causing an icy condition. As noted by the court in Roark v Hunting (24 NY2d 470, 475 [1969]), [i]t is also a general rule that an abutting owner is liable if, by artificial means, snow and ice are transferred from the abutting premises to the sidewalk; or if, by such artificial means, water from the property is permitted to flow onto the public sidewalk where it freezes. The basic distinction between liability and nonliability rests upon whether the water, snow or ice was conducted from private premises to the public sidewalk by artificial or natural means. The abutting owner may be held liable in the former case — where the unsafe condition was created by his own wrongful act
Thus, clearly, where someone does in fact attempt to remove snow and such snow melts causing an icy condition, causation of such icy condition falls within the ambit of the artificially created means enunciated in Roark (see also Rader v Walton, 21 AD3d 1409, 1410 [4th Dept 2005]). In this case, then, where Glavatonic removed snow, piling the same on the sides of the sidewalk, and where according to Ojalvo said snow melted causing the icy condition upon where Deborah fell, Glavatonic cannot credibly claim that such condition was not artificially created by his snow removal efforts. Clearly then, here, cases like Lin do not control the outcome. It is hereby
ORDERED that the complaint against the City and all cross-claims be dismissed in its entirety, with prejudice. It is further
ORDERED that the City serve a copy of this Decision and Order with Notice of Entry upon all parties within thirty (30) days hereof.
Dated : February 26, 2015
Bronx, New York
_________________________
Mitchell J. Danziger, ASCJ