Opinion
3002129/1997.
August 14, 2001.
Upon the foregoing papers, defendant Abdo Abdo Ali ("Ali") moves for an order pursuant to CPLR 3212 granting summary judgment and dismissing the complaint as against him. Defendant Lewis Halsey Meat Market ("Halsy") also moves for summary judgment and seeks an order dismissing the complaint as against it.
On December 31, 1996, snow and sleet were falling on New York City. Sometime during that storm, plaintiff Topsy Warner allegedly suffered serious injuries when she slipped and fell on a patch of ice on the sidewalk in front of defendant Halsy, which was located on the ground floor of premises owned by defendant Ali. Thereafter, plaintiff commenced this negligence action against defendants, who now separately move for summary judgment.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320,324). After such a showing, if the party opposing the motion comes forward with admissible evidence that there are issues of fact requiring a trial, the motion will be denied (Rebecchi v Whitmore, 172 AD2d 600, 601).
Ali's motion for summary judgment must be granted. "It is well-settled that an owner of property is under no duty to pedestrians to remove snow and ice that naturally accumulates upon the sidewalk in front of his [or her] premises" (Packes v Bally Total Fitness Corp., 278 AD2d 212, quoting Prado v City of New York, 276 AD2d 765; see, Stewart v Yeshiva Nachlas Haleviym, 186 AD2d 731). Thus, a defendant will be liable for injuries caused by the presence of ice and snow on the sidewalk only if it can be shown that the owner undertook to remove the snow and/or ice and, while doing so, made the sidewalk conditions more hazardous (see, Stewart v Yeshiva Nachlas Haleviym, 186 AD2d 731, supra; Keane v City of New York, 208 AD2d 457). Here, the evidence was uncontroverted that the commercial tenants and not Ali were responsible for removing the snow and, thus, having demonstrated that he did not create or increase the hazard posed by the snow and ice, Ali is entitled to summary judgment (see, Sherwood v Transworld Equities, Inc, 278 AD2d 25).
Halsy's motion for summary judgment is likewise granted. In support of its motion, Mahmoud Ali, the president of the meat market, testified that it was his practice to wait until after a snowstorm to shovel. Plaintiff concedes that since it was still snowing at the time of her accident, the store would not be liable if she had fallen on ice deposited from that day's storm. She contends, however, that questions of fact exist as to whether the ice was formed from precipitation from storms that occurred earlier in the week, and whether defendant's clean-ups from those storms created a hazardous condition. However, defendant submits an affidavit from meteorologist William R. Sherman, in which he states that, after examining the climatological data (also annexed to defendant's motion) he had determined that any ice on which plaintiff had slipped on December 31, 1996 could have only been the product of the ongoing storm. Specifically, Sherman explained that mixed precipitation of snow and freezing rain fell on December 31st which caused an accumulation of ice and snow of approximately .1 inch. The meteorologist noted that the ice on the ground could not have been the result of an earlier storm because, while small amounts of rain fell on December 27-29, the temperature on those days was above freezing and thus the rain could not have turned into ice. With this evidence, Halsy met its burden of establishing that it could not have created a dangerous condition by negligent shoveling of snow and ice and plaintiff has failed to come forward with any evidence which would create an issue of fact warranting denial of Halsy's motion for summary judgment (see, Sherwood v Transworld Equities, Inc., 278 AD2d 25 supra).
Accordingly, the respective motions of defendants Abbo Abbo Ali and Lewis Halsy Meat Market for an order pursuant to CPLR 3212 granting summary judgment and dismissing the complaint are granted and the complaint is dismissed.
This constitutes the decision, order and judgment of the court.