Opinion
0115535/2001.
October 13, 2004.
Plaintiff moves for renewal and reargument in order to vacate a summary judgment granted to defendant Strathallan Hotel, Inc. (Hotel) on January 12, 2004.
This is a personal injury action. The complaint alleges the following: Plaintiff arrived at Hotel on November 23, 2000 at about 3 p.m. with his wife. He left the hotel shortly thereafter in order to visit his elderly mother for Thanksgiving dinner, returning with his wife at approximately 8:45 p.m. After parking his vehicle in the lot, he noticed a small part of a handicapped symbol visible from below the snow, underneath the vehicle. His wife returned to Hotel, and plaintiff went back to his vehicle to move it to another spot. After plaintiff exited his vehicle from the new parking space, he began to walk toward the Hotel entrance. While he was looking straight ahead, he slipped and fell on ice and packed-down snow. He struggled to get up and then observed ice and packed-down snow on the ground in an extensive portion of the parking lot. As a result of the fall, plaintiff suffered serious injury to his right leg and ankle.
Three defendants moved for summary judgment dismissing the complaint: Hotel, Strathallan Real Estate Partnership (Partnership), and Ted Hosmer Enterprises, Inc.(Hosmer). Hotel argued that it could not be negligent for the slip and fall accident because it lacked actual and constructive notice of the condition in the parking lot. This court granted summary judgment to Hotel and Partnership, and denied summary judgment to Hosmer.
Plaintiff seeks renewal and reargument in order to vacate the court decision which granted summary judgment to Hotel. Plaintiff relies on deposition testimony from Douglas J. Summers, president and general manager of Hotel. He testified that the icy, slippery conditions shown in photographs annexed as exhibits were an accurate reflection of what the area looked like after Hosmer completed the salting and plowing of the area (Hosmer is Hotel's snow removal contractor).
Plaintiff claims that Hotel had notice of the dangerous condition. Each time that Hosmer would plow the area, Hotel allegedly would have sufficient time to remedy the condition left in the parking lot. Plaintiff claims that Hosmer, through its plowing, had aggravated the condition in the lot.
According to the testimony, employees of Hotel would conduct a de facto inspection of the parking lot every day when they walked from the back of the parking lot to the Hotel. Members of the Hotel Security Department would patrol the parking lot. Maintenance request slips were available or verbal notification to the department could occur. If a member of the crew saw a problem, it would be addressed directly by the crew. In the aftermath of a snowstorm, within the course of two days, the problem should have been addressed.
Plaintiff seeks renewal based on new case law that allegedly decides in favor of plaintiff. For example, he cites Zanki v Cahill, ( 2 AD3d 197 [1st Dept 2003]), which declared that where defendants have notice of a recurring, routinely unaddressed, dangerous condition, a question of fact exists whether defendants are negligent. Plaintiff further relies on Prenderville v International Service Systems, Inc. (2004 NY Slip Op 06449 [1st Dept Aug. 26, 2004]), which was decided post submission of the motion papers. In Prenderville, the Appellate Division held that a genuine issue of material fact existed as to whether the owner was negligent with regard to its daily inspections of the contractor's snow removal work thereby precluding summary judgment.
In opposition, Hotel asserts the plaintiff's arguments are speculation, that Hotel had no actual notice of the dangerous condition, or enough time to remedy the condition. According to Hotel, plaintiff has introduced no new facts to this case.
A motion to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. CPLR 2221 (d). A motion to renew shall be based upon new facts not offered on the prior motion, or a change in the law that would change the prior determination. CPLR 2221 (e).
Upon renewal, the court finds that, in view of the recent decision by the First Department, Hotel failed to meet its initial burden in establishing a prima facie showing of entitlement to judgment as a matter of law. It is settled law that a property owner generally "owes no duty to pedestrians to remove snow and ice that naturally accumulates on the sidewalk in front of its premises, but if it undertakes to do so, it may be held liable in negligence where its acts create or increase the hazards" Prenderville v International Service Systems, Inc., supra. Accordingly, in order to demonstrate a prima facie showing of entitlement to judgment as a matter of law, Hotel was required to demonstrate that it did not perform any snow removal work, or, alternatively, that if it did perform such work, those efforts did not create or exacerbate a dangerous condition Id. Even assuming, arguendo, Hotel did make a prima facie showing that it was entitled to summary judgment as a matter of law, here, plaintiff has met his burden by establishing the existence of a genuine issue of material fact as to whether Hotel was negligent with regard to its daily inspections of Hosmer's snow removal work.
Accordingly, it is
ORDERED that plaintiff's motion for reargument and/or renewal is granted, and upon renewal, it is
ORDERED that plaintiff's complaint is reinstated against Hotel.
This reflects the decision and order of this Court.