Bell v New York City Hous. Auth.
Annotate this CaseDecided on January 5, 2005
Supreme Court, New York County
ALEXANDER GRAHAM BELL, Plaintiff
against
NEW YORK CITY HOUSING AUTHORITY, Defendant
100982/04
Emily Jane Goodman, J.
In this action to recover for personal injuries sustained by plaintiff in a slip and fall accident, defendant New York City Housing Authority moves for summary judgment dismissing the complaint. The motion is denied.
According to the complaint, plaintiff resided in an apartment building located at 401 East 102nd Street, New York, New York, which was owned by defendant. On February 18, 2003, plaintiff was injured when, upon leaving the apartment building, he allegedly slipped and fell on snow which had accumulated on the exterior steps in the front of the building. The issue presented upon this motion is whether defendant had a duty to remove the snow before plaintiff's accident.
"To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented" (Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968]; see also Zuckerman v City of New York, 49 NY2d 557 [1980]). Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable (Glick & Dolleck v Tri-Pac, 22 NY2d at 441). On a summary judgment motion, the moving party must set forth evidence that there is no factual issue and that it is entitled to summary judgment (Zuckerman v City of New York, 49 NY2d at 560-562). If the moving party establishes a basis for a grant of summary judgment, the opposing party must present evidence that there is a triable issue (id.).
Forrest v Jewish Guild for the Blind, ___NY2d ___, 2004 WL 2381195 (2004). Therefore, [*2]defendant bears the burden of showing that there are no issues of fact as to whether any duty existed on its part to protect plaintiff from falling.
"In slip-and-fall cases involving snow and ice, a property owner or possessor is not liable unless he or she created the defect, or had actual or constructive notice of its existence." Voss v D&C Parking, 299 AD2d 346, 346 (2d Dept 2002). Under the "storm-in-progress" defense, espoused by defendant, "there is no liability for injuries related to falling on accumulated snow and ice until after the storm has ceased, in order to allow workers a reasonable period of time to clean the walkways." Powell v MLG Hillside Associates, L.P., 290 AD2d 345, 345 (1st Dept 2002); see also Shen v Gerald J. Neufeld, Inc., 196 AD2d 804 (2d Dept 1993). Therefore, if the snow storm which produced the allegedly hazardous condition on the steps of plaintiff's apartment building was still in progress at the time of plaintiff's fall, defendant was not, as a matter of law, afforded the time in which to ameliorate the condition, and bears no liability to plaintiff. Powell v MLG Hillside Associates, L.P., 290 AD2d 345, supra.
According to defendants, meteorological records, produced on this motion, show that more than 19.8 inches of snow had fallen in the 30-hour period preceding plaintiff's accident. Further, defendant claims that the Local Climatological Report for Central Park for February 18, 2003 (Notice of Motion, Ex. F) indicates that snow was falling at 9:30 a.m., approximately when plaintiff's accident occurred. On the other hand, plaintiff attests that, while it appeared to be snowing lightly when he awoke at 8:15 a.m., it was not snowing as he left the building between 9:30 a.m. and 9:45 a.m., when he fell, although snow was blowing around in the wind. Plaintiff's Affidavit, Opposition to Motion, Ex. C. Plaintiff claims that the same meteorological records produced by defendant indicate that only a trace of snow fell on February 18, 2003.
While it is established that a landowner has no duty to clear away snow and ice on its premises while a storm is in progress, "if the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and commonsense would dictate that the [storm-in-progress] rule not be applied." Powell v MLG Hillside Associates, L.P., 290 AD2d at 345-346. Under such circumstances, a question of fact arises as to the reasonableness of the landowner's efforts to alleviate the hazard. Id. at 346. According to Powell, the relevant issue is "what was happening during the period immediately preceding the accident." Id. at 346.
Defendant has not persuaded the court that there is no issue of fact as to whether the storm was still in progress when plaintiff fell. Plaintiff's testimony refutes defendant's claim that the storm was still in progress, and the meteorological reports do not support summary judgment on the issue. As a result, summary judgment must be denied.
Defendant attempts to utilize New York City Administrative Code § 16-123 as controlling as to the amount of time landowners are given to clean away snow and ice on the public sidewalks abutting their property. According to this provision, the landowner is afforded four hours after snow ceases to fall before clean-up is required, with the period between 9:00 p.m. and 7:00 a.m. not to be included in the four hour period.
This section of the Administrative Code is inapplicable to the situation herein. First, by its terms, it is not applicable to private property and is only applicable to sidewalks and gutters. Second, it does not "specifically impose tort liability" for any breach of the provision. Booth v [*3]City of New York, 272 AD2d 357, 358 (2d Dept 2000).[FN1] Unless a statute specifically imposes tort liability, none will be presumed. Id.; see also Norcott v Central Iron Metal Scraps, 214 AD2d 660 (2d Dept 1995). In the absence of specific tort liability, this court finds that Administrative Code § 16-123 does not alter the common-law ruling that a landowner's responsibility to see to the correction of a hazardous condition created by the accumulation of snow or ice is to be measured by the standard of reasonableness, rather than the time limitations imposed by the Administrative Code.
Because there is a question of fact as to whether the snow storm which produced the conditions allegedly leading to plaintiff's fall had ended as of the time of the incident, summary judgment will not be granted.
Accordingly, it is
ORDERED that the motion is denied.
This constitutes the Decision and Order of the Court.
Dated: January 5, 2005
ENTER:
____________________________
J.S.C.
Footnotes
Footnote 1:Although not applicable here Administrative Code §7-210, which applies to accidents occurring on or after September 14, 2003, does impose an affirmative duty upon a landowner to maintain public sidewalks in a reasonably safe condition.
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