Nicoletti v City of New York

[*1] Nicoletti v City of New York 2009 NY Slip Op 52839(U) Decided on July 27, 2009 Supreme Court, Queens County Kerrigan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 27, 2009
Supreme Court, Queens County

Antonio Nicoletti and ELSI NICOLETTI, Plaintiff,

against

The City of New York, 42-24 235TH STREET, LLC, HEITZ LANDSCAPE, INC., Defendants.



15673/07



Attorneys for Plaintiff

Frank Gonzalez, Esq.

Aliazzo, McCloskey & Gonzalez, LLP

94-03 101 Avenue

Ozone Park, NY 11416

Attorneys for the City

Eric Murrell, Esq.

Corporation Counsel

89-17 Sutphin Blvd, 4th Fl

Jamaica, NY 11435

Attorneys for Defendant Heitz

Christine Brennan, Esq.

MacKay, Wrynn & Brady, LLP

40-26 235 Street

Douglaston, New York 11363

Attorneys for Defendant 42-24

J. McGarry Costello, Esq.

O'Connor & Redd, LLP

200 Mamaroneck Ave

White Plains, New York 10601

Kevin J. Kerrigan, J.

The following papers numbered 1 to 25 read on this motion by defendant, the City of New York, for summary judgment and motion by defendant, Heitz Landscape, [*2]Inc., for summary judgment.

Papers

Numbered

Notice of Motion-Affirmation-Exhibits (City)......... 1-4

Affirmation in Opposition(42-24)-Exhibits............ 5-7

Affirmation in Opposition(Pltf)...................... 8-9

Reply(City)-Exhibit.................................. 10-12

Notice of Motion-Affirmation-Exhibits (Heitz)........ 13-16

Affirmation in Opposition............................ 17-18

Reply to City........................................ 19-20

Reply to 42-24....................................... 21-22

Reply to Plaintiff-Exhibit........................... 23-25

Motion by the City for summary judgment and motion by Heitz for summary judgment are consolidated for disposition.

Upon the foregoing papers it is orderedthat the motions are decided as follows:

Motion by the City for summary judgment dismissing the complaint and all cross-claims against it is granted. Motion by Heitz for summary judgment dismissing the complaint and all cross-claims against it is denied.

Plaintiff, Antonio Nicoletti, allegedly sustained injuries as a result of slipping and falling upon snow and ice in front of the premises 42-24 235th Street in Queens County on February 21, 2007. Said premises are a commercial building owned by 42-24 235th Street LLC (hereinafter 42-24).

Plaintiff's description of the area in front of the building in his deposition (a copy of his deposition transcript is annexed to Heitz' moving papers) conforms to the appearance of the area depicted in the photographs marked as defendant's exhibit "A" at plaintiff's deposition, which photographs are annexed to 42-24's opposition papers to the motion by the City for summary judgment. Plaintiff testified, and the photographs show, from a perspective looking directly toward the front door of the building from the curb, that there is a curbside cement flag abutting the curb and the regular portion of the sidewalk. Plaintiff described the flag as being approximately 3 feet by 3 feet in dimension and bordered on both the left and the right by a dirt tree well boxed in with wooden beams which plaintiff describes as, and which fairly resemble, railroad ties. On the other side of the sidewalk and [*3]directly abutting the front door to the building is a cement flag of approximately the same dimensions also bordered on the left and right by dirt planters boxed with railroad ties and containing some species of evergreen bushes. This flag and the planters appear to be part of the 42-24 premises and not part of the public sidewalk. This configuration creates the appearance of a direct path or walkway from the curb to the front door. Plaintiff also testified, and the photographs show, that there is a single step, approximately 3 feet in length by 1 foot in width, up to the front door.

Plaintiff testified that the area was covered with snow and ice. The snow was not fresh new snow, but was trodden and packed. It had not snowed or rained on the day of the accident but was sunny. Plaintiff testified that the last time it had snowed prior to the date of the accident was Valentine's Day, February 14th.

Plaintiff testified that as he came out the front door and stepped down off the step and had taken only one step he started slipping and he fell within the area of the flag in front of the building closest to the step.

The City moves for summary judgment upon the grounds that §7-210 of the New York City Administrative Code absolves it of statutory liability for injuries to a pedestrian resulting from the failure of an abutting property owner to maintain the public sidewalk and that it did not create the dangerous condition that caused plaintiff to slip and fall.

Section 7-210 of the New York City Administrative Code shifts liability for injuries resulting from the failure to maintain the public sidewalks in a reasonably safe condition, including the negligent failure to remove snow and ice, from the City, which owns the sidewalks, to the adjoining property owner, except where the adjoining premises are exclusively residential premises of less than four families that are owner-occupied or where the adjoining premises are owned by the City (see Report of Committee on Transportation, 2003 New York City, NY Local Law Report No. 49 Int. 193; Puello v. City of New York, 35 AD3d 294 [1st Dept 2006]). Since neither of these exceptions applies here, §7-210 shifts statutory liability from the City to 42-24 for any injuries resulting from the failure of 42-24 to maintain the sidewalk.

Counsel for 42-24 argues that there is an issue of fact as to whether plaintiff slipped upon the sidewalk or upon the curb, which is part of the street and, hence, is the responsibility of the City. Counsel for plaintiff, in his affirmation in opposition, adopts the arguments of 42-24's counsel. In this regard, counsel [*4]rely upon the deposition testimony of Theodore Tsoulis, a non-party witness. Tsoulis testified that "it seems like he slipped either on the €" the wood part of the €" of the €" planter or off the curb of the sidewalk. You wouldn't be able to tell because it was covered with ice and snow and he landed in the street." However, since Tsoulis did not know whether plaintiff slipped on the sidewalk or the curb, his testimony fails to raise an issue of fact. In any event, plaintiff unequivocally testified in his deposition that he slipped when he stepped down from the front door step and had taken only one step and fell on the flag directly abutting the entrance of the building, not the flag abutting the curb. Moreover, this flag does not even appear to be part of the public sidewalk but appears to be part of the subject premises.

Finally, the contention of counsel for 42-24 (adopted by counsel for plaintiff) that the City might have created the slippery condition because it may have plowed snow from the street onto the curb and sidewalk is entirely speculative and fails to raise an issue of fact. Indeed, Tsoulis refutes such contention. He testified that the roadway had been plowed, but the snow and ice that he observed in the area between the planters and the curb was not the same sort of snow and ice that was in the roadway. He also testified that the area between the two planters where plaintiff fell had snow the same height as the snow on the sidewalk €" that the entire area was uniform and had not been shoveled. In addition, as heretofore stated, plaintiff's own testimony establishes that he did not slip on the curb €" or even upon the curbside sidewalk flag €" but upon the flag abutting the front steps of the premises.

Finally, the argument of counsel that the motion must be denied as premature because the deposition of Heitz has not been conducted is without merit. Counsel's mere expression of hope that further discovery might reveal something beneficial to plaintiff is not a basis for denying the motion for summary judgment (see Jorbel v. Kopko, 31 AD3d 612 [2nd Dept 2006]).

Plaintiff has, thus, failed to raise an issue of fact in opposition to the City's prima facie showing that it was not statutorily liable to maintain the area where plaintiff slipped and fell and did not create the dangerous condition.

Motion by Heitz for summary judgment dismissing the complaint and all cross-claims against it is denied.

There is no dispute that Heitz is a landscape contractor who was hired by a non-party entity known as RCC Properties, LLC, which is a member of 42-24 235th Street LLC, to perform snow removal at the premises. [*5]

Counsel for Heitz argues that plaintiff was required to show proof that Heitz either created the condition or had actual or constructive notice of it in order to prevail, and no such proof has been shown. In this regard, one may be found liable if it is shown that he made the condition on the public sidewalk more hazardous by his ice and snow removal (see Lopez v. City of New York, 290 AD2d 539 [2nd Dept 2002]; Crowder v. Leichter, 282 AD2d 423 [2nd Dept 2001]; Booth v. City of New York, 272 AD2d 357 [2nd Dept 2000]). However, although a plaintiff must, in order to prevail in an action involving a sidewalk condition, establish all the elements of his prima facie case at trial, including that defendant created the condition, where defendant is moving for summary judgment, it bears the initial burden of establishing a prima facie entitlement to said relief, by tendering sufficient proof, in admissible form, to eliminate any material issues of fact(see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). It was the initial burden of Heitz, as the proponent of summary judgment, to proffer affirmative evidence in admissible form that any snow or ice removal efforts it undertook on behalf of the property owner did not make the naturally-occurring condition more hazardous (see Martinez v. City of New York, 20 AD3d 513 [2nd Dept 2005]). It has failed to do so.

Fred Heitz, president of Heitz Landscape, averred in his affidavit in support of the motion that Heitz did not perform snow removal since February 14, 2007 and annexes a copy of a bill to RCC, dated February 26, 2007, for snow clearing and sand/salt spreading performed on February 14, 2007. The bill indicates that Heitz had to do the snow clearing in both the morning and afternoon because of the magnitude of the storm. Heitz also annexes a copy of the contract between it and RCC in which Heitz disclaims liability for thawing and re-freezing.

However, plaintiff testified that on the date of the accident it was sunny with no precipitation and that the last time it snowed prior to the date of the accident was February 14th. He also testified that the entire area was covered in snow on the date of the accident and the snow was not fresh but was stepped upon and packed. No other deposition testimony or evidence is proffered to show that there was any precipitation subsequent to February 14, 2007 or that the snow upon which plaintiff slipped was not the same snow that Heitz avers that his company shoveled. Therefore, the fact that Heitz performed snow removal one week before the date of the accident does not constitute evidence that it did not create the condition. Moreover, with respect to Heitz' disclaimer of liability for thawing and re-freezing, no evidence has been proffered to show that there was a thaw and subsequent re-freeze.

Thus, there is a question as to whether Heitz, having undertaken to shovel the area, left it in a condition more [*6]hazardous than it otherwise would have been had it not shoveled at all and, therefore, created the hazardous condition (see Goldstein v. Moskowitz, 271 AD2d 489 [2nd Dept 2000]).

Accordingly, Heitz' motion for summary judgment is denied.

The Court has not considered 42-24's "Further Affirmation for Updated and Clarification Purposes to Heitz' Motion for Summary Judgment" or Heitz' "Sur-Reply" to 42-24's "Further Affirmation."

Dated: July 27, 2009

KEVIN J. KERRIGAN,,J.S.C.