Opinion
2018–09558 Index No. 508758/16
10-28-2020
Dolores ZAMBRANO, appellant, v. CITY OF NEW YORK, defendant, James P. Devereux, respondent.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant. Chesney, Nicholas & Brower, LLP, Syosset, N.Y. (Scott A. Koltun and Lindsie B. Alterkun of counsel), for respondent.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.
Chesney, Nicholas & Brower, LLP, Syosset, N.Y. (Scott A. Koltun and Lindsie B. Alterkun of counsel), for respondent.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JOHN M. LEVENTHAL, ROBERT J. MILLER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated May 25, 2018. The order, insofar as appealed from, granted the cross motion of the defendant James P. Devereux for summary judgment dismissing the complaint insofar as asserted against him.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to recover damages for personal injuries against the defendant James P. Devereux (hereinafter the defendant) and another. The defendant owned the Brooklyn premises abutting the sidewalk where the plaintiff allegedly was injured when she slipped and fell on snow. The defendant cross-moved for summary judgment dismissing the complaint insofar as asserted against him. In an order dated May 25, 2018, the Supreme Court, inter alia, granted the defendant's cross motion. The plaintiff appeals.
"Pursuant to Administrative Code [of the City of New York] § 16–123(a), owners of abutting properties have four hours from the time the precipitation ceases, excluding the hours between 9:00 p.m. and 7:00 a.m., to clear ice and snow from the sidewalk" ( Schron v. Jean's Fine Wine & Spirits, Inc., 114 A.D.3d 659, 660, 979 N.Y.S.2d 684 ). Here, the defendant had until 11:00 a.m. on the day of the incident to comply with the ordinance. Since that period had not yet expired at the time of the plaintiff's fall, the defendant demonstrated, prima facie, that he could not be liable for any failure to clear the sidewalk at the time of the incident (see id. at 660, 979 N.Y.S.2d 684 ). Further, the defendant demonstrated, prima facie, that neither he, nor anyone acting on his behalf, made the condition of the sidewalk more hazardous through negligent or improper snow removal efforts (see Colletti v. Bauer, 175 A.D.3d 1484, 1484–1485, 109 N.Y.S.3d 394 ; Schron v. Jean's Fine Wine & Spirits, Inc., 114 A.D.3d at 661, 979 N.Y.S.2d 684 ; Bruzzo v. County of Nassau, 50 A.D.3d 720, 721, 854 N.Y.S.2d 774 ). The plaintiff failed to raise a triable issue of fact in opposition (see Colletti v. Bauer, 175 A.D.3d at 1485, 109 N.Y.S.3d 394 ; David v. Chong Sun Lee, 106 A.D.3d 1044, 1045, 967 N.Y.S.2d 80 ).
Accordingly, we agree with the Supreme Court's determination to grant the defendant's cross motion for summary judgment dismissing the complaint insofar as asserted against him.
MASTRO, J.P., AUSTIN, LEVENTHAL and MILLER, JJ., concur.