Opinion
2015-07-01
Anthony P. FORLENZA, et al., plaintiffs, v. Salvatore MIGLIO, et al., respondents, Forgione Financial Services, Inc., et al., appellants, et al., defendants.
Leventhal, J.P., Cohen, Hinds-Radix and Duffy, JJ., concur.
James J. Toomey, New York, N.Y. (Evy L. Kazansky of counsel), for appellants. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Patrick J. Lawless of counsel), for respondents.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY, JJ.
In an action to recover damages for personal injuries, etc., the defendants Forgione Financial Services, Inc., Forgione Realty Corp., Forgione Accounting & Tax Services, Inc., and Frances M. Forgione appeal from an order of the Supreme Court, Kings County (Dabiri, J.), dated April 15, 2014, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.
ORDERED that the order is affirmed, with costs.
On December 21, 2009, the plaintiff Anthony P. Forlenza (hereinafter the injured plaintiff) allegedly slipped and fell on ice on a sidewalk abutting certain premises located on Graham Avenue in Brooklyn. The injured plaintiff, and his wife suing derivatively, commenced this action against, among others, Forgione Financial Services, Inc., Forgione Realty Corp., Forgione Accounting & Tax Services, Inc., and Frances M. Forgione (hereinafter collectively the Forgione defendants), who were the lessees of the premises, to recover damages for personal injuries.
“ ‘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’ ” (Schron v. Jean's Fine Wine & Spirits, Inc., 114 A.D.3d 659, 660, 979 N.Y.S.2d 684, quoting Bruzzo v. County of Nassau, 50 A.D.3d 720, 721, 854 N.Y.S.2d 774). “In the absence of a statute or ordinance imposing tort liability on the lessee, it can be held liable only if it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous” (Schron v. Jean's Fine Wine & Spirits, Inc., 114 A.D.3d at 660–661, 979 N.Y.S.2d 684; see Ferguson v. Shu Ham Lam, 74 A.D.3d 870, 871, 903 N.Y.S.2d 101; Robles v. City of New York, 56 A.D.3d 647, 647–648, 868 N.Y.S.2d 114; Bruzzo v. County of Nassau, 50 A.D.3d 720, 721–722, 854 N.Y.S.2d 774).
Here, the Forgione defendants, as lessees of the property, established that no statute or ordinance imposed tort liability on them ( cf. Administrative Code of City of N.Y. 7–210 [applicable to owners of real property] ). However, they failed to make a prima facie showing that there were no efforts to clear the sidewalk on the date of the injured plaintiff's accident or that any snow and ice removal efforts undertaken by them or by persons on their behalf did not exacerbate the hazardous condition which allegedly caused the injured plaintiff to fall ( see Roger v. Homestead Renovations, LLC, 119 A.D.3d 668, 669, 990 N.Y.S.2d 527; Ferguson v. Shu Ham Lam, 74 A.D.3d 870, 903 N.Y.S.2d 101; Robles v. City of New York, 56 A.D.3d 647, 647–648, 868 N.Y.S.2d 114; Petrocelli v. Marrelli Dev. Corp., 31 A.D.3d 623, 817 N.Y.S.2d 913; Harris v. City of New York, 122 A.D.3d 906, 998 N.Y.S.2d 101). Accordingly, the Forgione defendants were not entitled to summary judgment dismissing the complaint and all cross claims insofar as asserted against them.
Since the Forgione defendants failed to meet their prima facie burden as the movants, it is not necessary to consider whether the papers submitted in opposition to the motion were sufficient to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).
The Forgione defendants' remaining contentions need not be addressed in light of our determination.