Fernandez v 1330 3rd Ave. Corp.

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[*1] Fernandez v 1330 3rd Ave. Corp. 2005 NY Slip Op 51995(U) [10 Misc 3d 1057(A)] Decided on October 11, 2005 Supreme Court, New York County Goodman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2005
Supreme Court, New York County



1330 3rd AVENUE CORP. and RAY BARI PIZZA OF 76th STREET CORP., Defendants.


Emily Jane Goodman, J.

Defendants move pursuant to CPLR 3212 for an order granting summary judgment dismissing the complaint.

This is an action for damages for personal injuries allegedly sustained by plaintiff on January 28, 2004 at approximately 6 p.m. when she slipped and fell on a patch of ice while walking on the sidewalk abutting premises located at 1330 Third Avenue in Manhattan owned by defendant 1330 3rd Avenue Corp. and leased by defendant Ray Bari Pizza of 76th Street Corp.

In support of their motion for summary judgment defendants contend that plaintiff cannot establish a prima facie case because there is no evidence that plaintiff gave actual notice of the icy condition to defendants and no evidence that defendants had constructive notice. Defendants point to the fact that plaintiff did not testify that she observed any snow piled up in the area where she fell, nor was there testimony of general icing in the area or any testimony as to the size of the ice patch. In opposition, plaintiff argues that an issue exists as to whether defendants had constructive notice because meteorological data from the National Oceanic & Atmospheric Administration reflects that: snow fell during the morning hours of January 28, 2004 and the temperature was below freezing on that date; snow and other precipitation fell on both January 18 and 27, 2004; and, the temperature remained below 32 degrees Fahrenheit from January 18, 2004 through the date of the accident (see plaintiff's affirmation in opposition, exhibit E).

"As a general rule it is only the municipality which may be held liable for the negligent failure to remove snow and ice from a public sidewalk or to have defects and dangerous conditions in the sidewalk repaired, unless a charter, statute or ordinance clearly imposes liability upon the owner in favor of the injured pedestrian [citations omitted]" (Roark v. Hunting, 24 NY2d 470, 475 [1969]. Even where an ordinance imposed an obligation on an owner to clear snow or ice from a public sidewalk in front of the owner's premises, the owner was not obligated to remove that ice or snow unless the owner attempted removal and made it more hazardous (see Rios v. Acosta, 8 AD3d 183, 184 [1st Dept 2004]).

In 2003, the common law rules were changed in New York City with the passage of §7-2[*2]10 of the Administrative Code, absolving the City from tort liability for failure to maintain the sidewalk with respect to accidents occurring on or after September 14, 2003, and shifting that liability to abutting landowners (with exceptions pertaining to residential property which are not applicable herein) who neglect to maintain the sidewalk in a reasonably safe condition, including the "negligent failure to remove snow, ice, dirt or other material from the sidewalk" (see Administrative Code § 7-210; Klotz v. City of New York, 9 AD3d 392, 393 [2nd Dept 2004]). Although ignored by both plaintiff and defendants, § 7-210, which imposes tort liability on the abutting landowner for the negligent failure to remove snow and ice from the sidewalk, governs this action because plaintiff's accident occurred after September 14, 2003.

To establish a prima facie case of negligence plaintiff must demonstrate that a duty was owed to her by defendants, breach of that duty and resulting injury (see Gaeta v. City of New York, 213 AD2d 509, 510 [2d Dept 1995]). As noted above, the duty to maintain the sidewalks along with potential tort liability has been shifted from the City to the abutting landowner by § 7-210. To establish a breach of duty herein plaintiff must show that the defendants created the icy condition which caused her accident or that they had actual or constructive notice of that condition (id.; see also Voss v. D&C Parking, 299 AD2d 346 [2d Dept 2002]) or that they negligently failed to perform their affirmative duty to remedy that condition (Administrative Code § 7-210). Plaintiff does not now contend that defendants created the patch of ice which allegedly caused her accident. It is undisputed that plaintiff did not give actual notice to defendants. Thus, plaintiff must show that defendants had constructive notice. "Constructive notice requires that the defect be visible and apparent, and it must exist for a sufficient length of time prior to the incident so as to permit a [defendant] to discover and remedy it" (Meyers v. Haskins, 140 AD2d 923, 924 [3d Dept 1988], citing Gordon v. American Museum of Natural History, 67 NY2d 836, 837 [1974]). Plaintiff's contention, that weather conditions on January 18, 27 and 28, 2004 and the freezing temperatures throughout that period could have created the patch of ice on which plaintiff fell, buttressed by her meteorological data (see plaintiff's exhibit E), could support a jury finding that plaintiff fell on a patch of preexisting ice, which defendants had a sufficient period of time to discover and remedy (see Rivas v. New York City Housing Authority, 261 AD2d 148 [1st Dept 1999]; May v. American Red Cross, 287 AD2d 418, 419 [1st Dept 2001]). Simmons v Metropolitan Life Ins. Co. (84 NY2D 972 [1994]) is inapposite because there the evidence presented at trial was that icy patches were noticed weeks prior to the accident and that snowfall occurred one week before the accident, but no evidence was introduced as to the temperature after the snowfall and prior to the accident. Thus, the Court concluded that there was no evidence of constructive notice and pointed to the lack of evidence as to the origin of the ice patch and whether the defendant had sufficient time to remedy it. However, here, the meteorological data indicates snowfall on January 18, 27, and 28 and freezing temperatures throughout that period, which could support a finding that plaintiff fell on a patch of preexisting ice, which defendants had a sufficient period of time to discover and remedy.

Summary judgment is a drastic remedy which should not be granted if there is any doubt as to the existence of a triable issue (see Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 [1978]; Sillman v. Twentieth Century-Fox Corp., 3 NY2d 395, 404 [1957]). This is especially true in negligence cases where the very question of negligence is in itself a question for jury determination (see Ugarriza v. Schneider, 46 NY2d 471, 474 [1979]). The question of whether [*3]defendants breached their duty of care to plaintiff by negligently failing to remove the patch of ice which allegedly caused plaintiff's accident presents a factual issue which cannot be resolved on the basis of the papers before the court (cf. DiNatale v. State Farm Mutual Automobile Insurance Company, 5 AD3d 1123, 1125 [4th Dept 2004] [triable issue of fact whether defendants breached duty of due care to accident victims by allegedly failing to carry out their obligations under the Town Code requiring abutting owner to keep sidewalk free and clear from snow and ice and imposing liability for such failure for injury or damage caused thereby]).

Accordingly, defendants' motion is denied.

This constitutes the Decision and Order of the Court.

DATED: October 11, 2005