Opinion
308934/11
10-27-2015
Efrain Rodriguez, Plaintiff(s), v. The City of New York AND THE NEW YORK CITY HOUSING AUTHORITY, Defendant(s).
Counsel for plaintiff: Greenberg & Stein, PC Counsel for NYCHA: Ledy-Gurren Bass & Siff, LLP Counsel for the City: New York City Law Department.
Counsel for plaintiff: Greenberg & Stein, PC
Counsel for NYCHA: Ledy-Gurren Bass & Siff, LLP
Counsel for the City: New York City Law Department.
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 renewal of an order dated December 16, 2014, issued by Judge John A. Barone, which to the extent relevant, denied the City's motion seeking summary judgment. The City argues, inter alia, that because plaintiff's alleged accident was preceded by a large amount of precipitation - the last of which fell only days before plaintiff's accident - the City was not required to ameliorate the icy condition alleged. To the extent that the court held otherwise, the City avers it erred. Thus, the City alleges that reargument is warranted because the court misapprehended the facts and/or misapplied the law. Plaintiff opposes the City's motion asserting, inter alia, that since whether the City's had a duty to undertake snow removal efforts at the location of his accident remains a question of fact, the court did not err and reargument is unwarranted.
For the reasons that follow hereinafter, the City's motion is granted .
While CPLR § 2221(a) requires that a motion to reargue "shall be made, on notice, to the judge who signed the [underlying] order," it goes on to state that the foregoing is only true if "he or she [the original judge] is for any reason unable to hear it." Thus, while except under "exceptional circumstances" (Willard v Willard, 194 AD 123, 125 [2d Dept 1920]), "one judge should not vacate an order made by a court held by another judge" (id.; see also Spahn v Griffith, 101 AD2d 1011, 1011 [4th Dept 1984]), it is nevertheless well settled that one judge of concurrent jurisdiction can review and vacate an order of another (Scelzo v Acklinis Realty Holding LLC, 101 AD3d 468, 468 [1st Dept 2012] ["Justice Torres properly granted the motions for leave to reargue, as the Justice who signed the order on the prior motions failed to address defendants' assertion that the defect which caused plaintiff's accident was trivial."]; Billings v Berkshire Mut. Ins. Co., 133 AD2d 919, 919-920 [3d Dept 1987] ["Here, the motion was before the second Justice because of the implementation of the individual assignment system which contemplates that all motions are to be made returnable before the Justice charged with overseeing the case."]). Here, Judge Barone retired before the instant motion to reargue was marked fully submitted on July 27, 2014. Thus, he is unavailable to hear this motion and insofar as this Court is tasked with presiding over all cases against the City, the motion was transferred to it and will, therefore, decided it.
The instant action is for alleged personal injuries sustained by plaintiff when he allegedly slipped and fell on ice. Specifically, plaintiff's complaint, read together with his notice of claim, alleges that on January 31, 2011, while traversing the sidewalk abutting premises located at 1084 East 165th Street, Bronx, NY (1084), he slipped and fell on an icy condition existing thereat. Plaintiff alleges that the City owned and maintained the sidewalk, and was negligent in failing to maintain it in a reasonably safe condition, and that such negligence caused his accident and the injuries resulting therefrom. Plaintiff also alleges that defendant NEW YORK CITY HOUSING AUTHORITY (NYCHA) owned 1084, and as owner, was responsible to maintain the sidewalk, was negligent in failing to do so, such negligence causing the aforementioned accident and injuries .
While Judge Barone - in the order for which reargument is sought - also denied NYCHA's cross-motion for summary judgment, NYCHA does not seek to reargue the same. Thus, the cause of action against NYCHA is only summarized for the sake of completeness but the majority of this decision shall not address the action against NYCHA nor any of the evidence it submitted on its prior cross-motion.
On December 16, 2014, Judge Barone, to the extent relevant, denied the City's motion for summary judgment on grounds that questions of fact precluded summary judgment. Specifically, with regard to the City, Judge Barone concluded that "a jury could conceivably conclude that [with respect to the cessation of the last snow fall and plaintiff's accident] . . . the City had sufficient time in which to respond.
CPLR § 2221(d)(1), prescribes the reargument of a prior decision on the merits and states that such motion
shall be based upon matters of fact or law allegedly overlooked or misapprehended by the
court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.Accordingly,
[a] motion for reargument, addressed to the discretion of the Court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principal of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided(Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979]; see also, Fosdick v Town of Hemstead, 126 NY 651, 652 [1891]; Vaughn v Veolia Transp., Inc., 117 AD3d 939, 939 [2d Dept 2014]). Thus, because reargument is not a vehicle by which a party can get a second bite at the same apple, a motion for reargument preludes a litigant from advancing new arguments or taking new positions which were not previously raised in the original motion (Foley at 567).
A motion to reargue, must be made within 30 days after service of a copy of the underlying order with notice of entry (CPLR § 2221[d][3]; Perez v Davis, 8 AD3d 1086, 1087 [4th Dept 2004]; Pearson v Goord, 290 AD2d 910, 910 [3rd Dept 2002]).
The City's motion seeking reargument of Judge Barone's decision is granted insofar as it establishes that in concluding that the City had enough time between the last time it snowed and plaintiff's accident to remove the same, Judge Barone misapprehended both the facts and misapplied the relevant law. A review of the City's prior moving papers establishes that given the amount of snow that had fallen prior to plaintiff's accident and the time between the cessation of the last snow fall and the instant accident, the City did not have to undertake any snow removal efforts at the instant location as a matter of law. Moreover, reargument is warranted because on the record before Judge Barone, the City also demonstrated entitlement to summary judgment by establishing (1) that the icy condition alleged to have caused plaintiff's accident was neither unusual, exceptional, or in any way different from those conditions commonly associate with the prevailing winter weather; and (2) that it had no notice of the particular patch of ice alleged to have caused plaintiff's accident. Both of the foregoing grounds mandated the grant of summary judgment in favor of the City, and insofar as Judge Barone failed to address the same, he further misapprehended the facts and misapplied the law .
Notably, the City utterly fails to move for summary judgment on arguably its most meritorious ground, namely, that under § 7-210, it had no obligation to remove snow from the situs of the instant accident. As will be discussed hereinafter, on this record it is clear that the duty to remove snow and ice from the sidewalk abutting 1084 was NYCHA's, as owner of 1084, a non-exempt property. Nevertheless, inasmuch as parties are free to chart their own course (Misicki v. Caradonna, 12 NY3d 511, 519 [2009] ["We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made"] ), the only addresses those arguments raised by the City.
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]). Prior to § 7-210, an abutting landowner had no duty to maintain the public sidewalk and was not civilly 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 for the maintenance of 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, therefore, liable for defects existing on the sidewalks abutting exempt properties that it fails to remediate. Despite § 7-210, the City also remains liable for any defective condition upon a public sidewalk if it created the dangerous condition alleged, or enjoyed a special use of the area upon where the defect existed ( Yarborough at 726). Additionally, notwithstanding § 7-210, 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 from public sidewalks (Klotz at 357-358). Stated differently, prior to the enactment of § 7-210, as with the duty to maintain public sidewalks in a reasonably safe condition, i.e., free from defects, the duty to remove snow and ice from public sidewalks rested 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" (Rios at 184; Sanders at 169; Klotz at 358). Presently, however, in New York City, 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, which exempts certain property owners from the duty to maintain their sidewalks in a reasonably safe condition, owners of exempt property nevertheless remain liable for injuries caused by defects on the sidewalks which abut their property 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]).
When there exists an obligation to maintain the public sidewalk, liability for the failure to do so is governed by the law of premises liability. Thus, as is the case with any action sounding in the negligent maintenance of a premises, liability lies if it is proven that a defendant 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). This is particularly important in an action against a defendant, whose property does not abut the sidewalk upon which a plaintiff claims to have fallen, and who unlike a municipal defendant, does not otherwise have a duty to maintain the public sidewalk.
More specifically, with regard to liability for a dangerous snow and/or ice condition in and around a premises, it is well settled that generally there can be no liability for dangerous conditions resulting from the accumulation of snow and ice absent evidence that a defendant, 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]), had notice - actual or constructive - of the dangerous 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]).
In cases where a municipality is required to address snow and ice conditions upon public sidewalks, the foregoing is no less true. 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 actually 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 plaintiff 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). Thus, generally to prove constructive notice of an icy condition based on a prior storm, a plaintiff must establish that the icy condition could have formed as a result of the precipitation and the weather that followed thereafter ( Bernstein at 1022 ["The evidence indicated nothing more than the possible existence of an unmeasurable trace of snow or ice prior to the January 13 snowstorm. Plaintiff produced no evidence that an ice patch of such dimension could have been formed from such precipitation and could have lasted until January 15. Quite simply, plaintiff has failed to show facts and conditions from which the negligence of defendant could have been reasonably inferred."]).
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."]).
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 [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 (id. at 148). 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, 125 AD3d 800, 801 [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."]).
Nonetheless, 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.; see also Thompson v Rose, 283 AD 735 [2d Dept 735, 735 [2d Dept 1954 ["The accident occurred on December 23, 1948, about 1:30 P.M., approximately three and a half days after the termination of a snowstorm during which 16.7 inches of snow fell. In our opinion, plaintiff failed to establish any actionable negligence on the part of the City of New York."]; Ganek v City of New York, 286 AD 1036, 1036 [2d Dept 1955] [Summary judgment in favor of defendant granted when "[t]he accident occurred on December 23, 1948, shortly after 9:00 A.M., about eighty hours after the termination of a snowstorm during which sixteen and seven-tenths inches of snow fell."]).
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 1091; Arashkovitch v City of New York, 123 AD3d 853, 854 [2d Dept 2014]).
A municipality cannot be held liable for a defective snow/ice condition unless it is established that it is unusual, exceptional, or different in character from those conditions that exist during the winter (Gaffney v City, 218 NY 225, 227 [1916] [Plaintiff's action for a fall on the sidewalk due to slush dismissed insofar as the slush was neither unusual or exceptional and was instead a condition naturally to be expected during the winter.]; Williams v City of New York, 214 NY 259, 264 [1915]; Saez v City of New York, 82 AD2d 782, 783 [1st Dept 1981] ["On the facts before this Court the plaintiff failed to show that the defendants permitted an unusual and dangerous accumulation of ice and snow (- ice patches - -) to remain on the sidewalk for an unreasonable period of time."]; McGuire v City of New York, 24 AD2d 496, 497 [2d Dept 1965] ["In our opinion, plaintiff failed to establish that the patch of ice upon which he slipped was dangerous or unusual or exceptional."]; Mazanti v Wright's Underwear Co., 266 AD 18, 21 [3d Dept 1943]). The foregoing rule, was aptly articulated in Harrington v City of Buffalo (121 NY 147 [1890]), where the Court of Appeals, affirmed summary judgment in favor of the municipal defendant upon plaintiff's fall on a slippery and icy sidewalk (id. at 151). Significantly, the Court noted
[t]he walk [upon which plaintiff fell], as thus shown, presented no unusual appearance for cities in our uncertain and inclement climate, and caused no more objectionable obstacle to safe passage than frequently exists in cites and villages during the cold season. Whatever might have been its condition, so far as danger was to be apprehended, it arose solely from its frozen and slippery condition, and that, as we have seen, was caused by the freezing of the night before the accident. The danger arising from the slipperiness of ice or snow lying in the streets is one which is familiar to everybody residing in our climate, and which every one is exposed to who has occasion to traverse the streets of cities and villages in the winter season. Accidents occurring from such causes are chargeable solely to the persons injured, unless it can be shown that the cause thereof has been occasioned, aggravated, or negligently permitted by the act of some third party charged with the duty of obviating or removing it . . . The proof fails to show that there was any unusual or dangerous obstruction to travel arising from snow or ice in the street, or, even if there was, that any such lapse of time had intervened between the period of its creation and the occurrence of the accident as afforded a presumption of knowledge in the municipality of its condition; or opportunity to remove the obstacle after notice was received(id. at 150 [emphasis added]).
Upon a review of the City's motion for summary judgment, it is clear that it established entitlement to summary judgment. As noted above, the City, with its evidentiary submissions established, as a mater of law, that the length of time between plaintiff's accident and the complete cessation of the previous episodes of heavy precipitation was insufficient to trigger the City's obligation to undertake snow removal efforts at the situs of this accident. Moreover, the City's submissions also establish the absence of any prior notice of the condition which caused plaintiff's accident and that, in any event, the condition alleged was neither unusual or exceptional. Each of the foregoing grounds, independently warranted summary judgment in the City's favor.
In support of the prior motion, the City submitted the transcripts of plaintiff's two 50-h hearings, which collectively establish, in pertinent part, the following. On January 31, 2011 at approximately 1AM, plaintiff slipped and fell on a patch of ice located on the sidewalk abutting 10-84. 10-84 was a three-story building which housed six families and was owned by NYCHA. Plaintiff had resided therein since 2004. Immediately prior to his accident, plaintiff had exited 1084 and was en route to a deli across the street. He exited 1084, traveled he about 12 steps and slipped and fell. After he fell he noticed that he had slipped on a patch of ice on the sidewalk. The patch was approximately a foot wide and a foot long. Plaintiff did not notice any other patches of ice on the sidewalk, but did see some snow on the ground. Plaintiff had not seen the patch prior to falling, did not know how long it had been there, had no knowledge of anyone else falling thereon, nor did he make any complaints regarding the same. Plaintiff testified that it had snowed about five to six days prior to his accident, but that the snow had been cleared by 1084's management company, SEPCO, by whom he was also employed as superintendent.
The City also submitted a transcript of Walter Yurkus' (Yurkus) deposition transcript, wherein he testified, in pertinent part, as follows. In 2011, Yurkus 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. Yurkus testified that when it snowed or there was a threat of snow, NYCDOS had a procedure in place where they would outfit sanitation trucks and dump trucks with plows and chains. They would then preposition salt spreaders and begin to remove snow along designated routes. Routes were assigned a priority for purposes of snow removal such that primary routes were those with major thoroughfares and schools and secondary routes were every other route. Yurkus testified that 1084 was on a secondary route, and that NYCDOS would never remove any snow from the sidewalk located thereat. More specifically, Yurkus testified that NYCDOS did not remove snow from any of the sidewalks within the City of New York, except those abutting police stations and firehouses. NYCDOS did remove snow on the portions of sidewalks that abutted hydrants, bus shelters and the corners of sidewalks housing handicap access ramps (corner caps).
The City also submited the transcript of testimony provided by Angel Rodriguez (Angel) at his deposition, wherein he testified, in pertinent part, as follows. In 2011, Angel was employed by BMA, a company that managed a NYCHA owned housing development called Murphy Private. Angel was a superintendent in charge of five buildings within the foregoing development, one of which was 1084. His duties included the removal of snow and ice when it snowed. On days that it snowed he would normally be apprised by his supervisor that snow removal efforts be undertaken in and around the development. Such efforts generally entailed removing snow every time it accumulated to a depth of two inches. Angel used a snow blower to remove the snow and an ice chopper to remove ice. Any snow removed by Angel would be pushed to the curb on the sidewalk. Angel testified that on January 27, 2011 it had snowed about 19 inches. He recalls undertaking snow removal efforts to ensure that the sidewalk in and around 1084 was free of snow and ice. Angel testified that the City has never removed any snow from the sidewalk abutting the development.
The City submitted climatological reports evincing that on January 25, 2011, it snowed and accumulation was one inch. Thereafter, on January 26th, it snowed again, and accumulation was 8.3 inches. It snowed again on January 27th, and accumulation was 6.7 inches. The next two days, only a trace amount of snow fell. On the 30th, no snow fell at all and on the 31st there was again only a trace amount of snow. From the 25th through the 31st, the temperature dipped below freezing and only rose above freezing by one degree on the 26th, 27th, 29th, and the 30th.
Based on the foregoing, the City established 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, the climatological reports indicate that only four days prior to plaintiff's accident, it had snowed and there was an accumulation of at least 16 inches. Moreover, in the seven days preceding plaintiff's accident, the temperature dipped below freezing, rising above that mark by only one degree. Accordingly, 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 were deemed reasonable such that the municipality was not obligated to remove any snow, here, the City's failure to clear the sidewalks abutting 1084 within the four days of cessation of a major snowfall, was not unreasonable as a matter of law. Thus, the City established prima facie entitlement to summary judgment for this reason alone.
Additionally, however, the City's evidence, specifically plaintiff's own testimony established that the condition upon which he slipped was neither unusual nor extraordinary and that, in any event, the City had no notice of the same's existence. As noted above, a municipality cannot be held liable for a defective snow/ice condition unless it is established that it is unusual, exceptional, or different in character from those conditions that normally exist during the winter (Gaffney at 227; Williams at 264; Saez at 783; McGuire at 497; Mazanti at 21). Here, plaintiff testified that the ice upon which he fell was only a foot in length and a foot wide. He also testified that the ground was otherwise dry and substantially free of snow. Thus, the icy condition alleged was quite small and it cannot be credibly argued that it was either unusual or extraordinary given the average winters at the instant location. Thus, the City established prima facie entitlement to summary judgment on this additional ground.
Lastly, it is well settled that an essential prerequisite to municipality liability for a dangerous snow/ice condition upon property it is required to maintain is prior notice (Otero at 690), and that evidence that it had snowed prior to a plaintiff's accident is, by itself, insufficient to establish constructive notice of a dangerous ice condition's existence (Simmons at 973-974; Grillo at 649). Here, plaintiff testified that not only had he not made any complaints to anyone about the icy condition alleged, but that he saw it for the first time after his fall. Thus, the City establishes the absence of actual and constructive notice with plaintiff's own testimony - the latter with proof that the record is bereft of any evidence that the patch was longstanding - and further negates constructive notice with Angel's testimony that while it had snowed some 19 inches on the 27th of January, he undertook efforts to remove all snow and ice resulting therefrom. This is significant because, 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 actually caused by the prior storm ( Simmons at 973-974; Grillo at 649; Lenti at 289; Steo at 421). Angel's testimony, thus, breaks any connection between the prior storm, as bourne by the weather data, on the 25th-27th, and the patch existing in front of 1084 on the date of plaintiff's accident. Stated differently, it cannot be argued, given Angel and plaintiff's testimony, that the ice at the location herein formed as a result of the prior snowfall. More specifically, when Angel testified that he removed all snow resulting from the prior accident and plaintiff's testimony which failed to establish how long the patch existed prior to his fall does not belie the same. The City, therefore, established prima facie entitlement to summary judgment for this additional reason.
Plaintiff's opposition to the City's motion, relying on the very evidence submitted by the City, failed to raise an issue of fact sufficient to preclude summary judgment.
Based on the foregoing, reargument of Judge Barone's prior order is granted and upon reargument the City's motion for summary judgment is hereby granted. 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 this action be hereby transferred to Part 17, the Public Authorities Part. 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 : October 27, 2015 Bronx, New York _________________________ Mitchell J. Danziger, ASCJ