Opinion
12-17-2014
Tamara ARASHKOVITCH, plaintiff-respondent, v. CITY OF NEW YORK, et al., defendants-respondents, Miriam Greenberg, et al., appellants.
Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for appellants. Arkady Frekhtman, Brooklyn, N.Y. (Stephen J. Smith of counsel), for plaintiff-respondent. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, Margaret G. King, and Christina Blythe of counsel), for defendant-respondent City of New York.
Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for appellants.
Arkady Frekhtman, Brooklyn, N.Y. (Stephen J. Smith of counsel), for plaintiff-respondent.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, Margaret G. King, and Christina Blythe of counsel), for defendant-respondent City of New York.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for personal injuries, the defendants Miriam Greenberg and Sheldon Greenberg appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), entered September 27, 2013, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants to the plaintiff and the defendant City of New York. Homeowners of single-family homes that are owner-occupied, such as the appellants, are exempt from liability imposed pursuant to section 7–210(b) of the Administrative Code of the City of New York for negligent failure to remove snow and ice from the abutting public sidewalk. However, they can be held liable where they, or someone on their behalf, undertook snow and ice removal efforts which made the natural conditions more hazardous (see Roger v. Homestead Renovations, LLC, 119 A.D.3d 668, 668–669, 990 N.Y.S.2d 527 ; Lee v. Ilyasov, 95 A.D.3d 1205, 1205–1206, 945 N.Y.S.2d 150 ; Schwint v. Bank St. Commons, LLC, 74 A.D.3d 1312, 1313, 904 N.Y.S.2d 220 ). "A property owner that elects to engage in snow removal activities must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by a storm" ( Gwinn v. Christina's Polish Rest., Inc., 117 A.D.3d 789, 789, 986 N.Y.S.2d 182 ; see Wei Wen Xie v. Ye Jiang Yong, 111 A.D.3d 617, 618, 974 N.Y.S.2d 113 ).
Here, the appellants failed to establish their prima facie entitlement to judgment as a matter of law, since, contrary to their contention on their motion, they failed to demonstrate that their snow removal efforts, which were undertaken prior to the accident, did not create or exacerbate the icy condition which allegedly caused the plaintiff to slip and fall (see Viera v. Rymdzionek, 112 A.D.3d 915, 916, 977 N.Y.S.2d 390 ; Lee v. Ilyasov, 95 A.D.3d at 1205, 945 N.Y.S.2d 150 ; Schwint v. Bank Street Commons, LLC, 74 A.D.3d at 1313–1314, 904 N.Y.S.2d 220 ; Robles v. City of New York, 56 A.D.3d 647, 648, 868 N.Y.S.2d 114 ). Since the appellants failed to satisfy their prima facie burden, we need not consider the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
Accordingly, the Supreme Court properly denied the appellants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.