Lindenmuth v City of New York
Annotate this CaseDecided on May 21, 2013
Supreme Court, Richmond County
Diane Lindenmuth, Plaintiff,
against
The City of New York and DONATAS AUGYLIUS, Defendants.
027752/11
Thomas P. Aliotta, J.
The following papers numbered 1 to 6 were fully submitted on the 27th day of
March, 2013.
PapersNumbered
Notice of Motion for Summary Judgment by Defendant
The City of New York, with Supporting Papers
(dated January 29, 2013)........................................................................................ 1
Notice of Motion for Summary Judgment by Defendant
Donatas Augylius, with Supporting Papers
(dated January 22, 2013)....................................................................................... 2
Affirmation in Opposition by Defendant The City of New York
(dated February 20, 2013)....................................................................................... 3
Plaintiff's Affirmation in Opposition
(dated March 20, 2013)........................................................................................... 4
Reply Affirmation by Defendant The City of New York
(dated March 25, 2013)........................................................................................... 5
Reply Affirmation by Defendant Donatas Augyliuis
(dated March 26, 2013)............................................................................................ 6
[*2]
Upon the foregoing papers, the motion (No. 001) for summary judgment and dismissal of the complaint against defendant The City of New York (hereinafter, the "City") is granted; the like motion (No. 002) of defendant Donatas Augylius is denied.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff Diane Lindenmuth on February 6, 2011, at approximately 10:30 p.m., when she slipped and fell due to an alleged accumulation of ice on the sidewalk in front of the premises located at 10 N. Rhett Avenue, Staten Island, New York and owned by defendant Donatas Augylius. In the Notice of Claim, it is alleged that plaintiff was "caused to trip and fall on an uneven, unlevel, raised, cracked, hazardous and defective portion of the sidewalk with ice thereat". More particularly, plaintiff testified at her deposition that although the sidewalk in question was completely clear of snow on the day of her accident, she slipped and fell on "a sheet of ice" covering an area measuring approximately two feet by three feet which abutted the front lawn of the individual defendant's residence.
In its motion for summary judgment and dismissal of the complaint and all cross claims against it, the City contends that (1) there is no evidence that it created, or had actual or constructive notice of the specific area of ice on the sidewalk where plaintiff allegedly fell, (2) it did not negligently or otherwise remove snow from the sidewalk in question, and (3) prior written notice of a pavement defect at the accident location cannot result in the imposition of liability where the noticed defect played no role in the happening of plaintiff's accident.
In support of its claim of lack of actual notice, the City submits the affidavits of New York City Department of Sanitation (hereinafter, "DSNY") employees John Gabriel and Jason Chen. Mr. Gabriel attests that all reports of snow and ice conditions are received and recorded by DSNY either in the 311 call system, DSNY's Central Correspondence Unit, or the "icy conditions book". He further avers that since the latter pertains solely to snow and ice conditions on roadways, any recorded complaints relating to snow and ice on sidewalks are contained only in DSNY's 311 call system and the records of its Central Correspondence Unit. As to these records, Mr. Chen attests that he conducted a thorough search of same and found none to exist for 10 N. Rhett Avenue during the two-week period prior to the date of plaintiff's accident. Moreover, the City claims that a general awareness that a weather-related condition such as a patch of ice may exist is legally insufficient to confer constructive notice of the specific condition upon it.
The City further maintains that it did not cause or create the subject ice patch. In this regard, the City relies on the affidavit of DSNY's Superintendent, Anthony Bergen, who performed a separate search and found no records pertaining to snow removal activities undertaken by DSNY employees or its contractors at the accident location during the same two-week period. The City also relies upon National Weather Service climatological data for January and February of 2011, which clearly indicates that the temperature fluctuated above and below the freezing mark for several days leading up to the accident, including the prior day. According to this data, the temperature on the date of the accident remained above the freezing mark, ranging from a low of 33 degrees Fahrenheit to a high of 46 degrees Fahrenheit.
In addition, the City argues that plaintiff's admission at her deposition that she did [*3]not observe this patch of ice when she traversed the same sidewalk earlier on the day of her accident undermines any claim of constructive notice. In any event, it is the City's position that the uncontroverted evidence of temperature fluctuations above and below the freezing mark in the days before the accident effectively negates plaintiff's claim of actual or constructive notice of the alleged hazardous condition for a reasonably sufficient time prior to the accident to abate the condition (cf. Administrative Code of the City of New York §7-210).
Defendant Augylius has also moved for summary judgment and dismissal of the complaint, claiming that since his premises is an owner-occupied two-family residence, he is exempt from liability under the so-called "new sidewalk law", i.e., section 7-210 of the Administrative Code of the City of New York. He further maintains that there is no evidence before the Court that the snow removal work which he performed several days before the accident created or increased a hazardous condition on the sidewalk. To the contrary, he claims to have cleared the snow from the sidewalk in a "non-negligent" fashion as depicted in plaintiff's photographs of the accident site. Finally, this defendant argues that plaintiff, who admitted at her deposition that the sidewalk had been cleared of snow, offers only "hypotheses and suppositions" in support of her claim of negligent snow removal as the cause of the alleged icy condition. Such conjecture is clearly insufficient to raise a triable issue of fact.
It is well established in snow removal cases that a property owner may be held liable for a hazardous condition on the sidewalk if his or her removal efforts made the naturally-occurring condition more hazardous (see John v City of New York, 77 AD3d 792; Braun v Weisman, 68 AD3d 797). In this regard, it has been noted with some regularity that the shoveling or plowing of snow into piles may foreseeably result in a dangerous condition because of subsequent melting and refreezing (see e.g. San Marco v Village/Town of Mount Kisco, 16 NY3d 111, 117-118).
In this case, it is the Court's opinion that defendant homeowner has failed to sustain his burden of demonstrating, prima facie, that his snow removal efforts did not create the alleged icy condition which caused plaintiff to fall (see Braun v Weisman, 68 AD3d at 798). To the contrary, a triable issue of fact exists as to whether or not this defendant's practice of shoveling the snow into piles immediately adjacent to the sidewalk ( see e.g., Defendant Augylius' Exhibits F, G; EBT p 17) foreseeably resulted in the alleged icy condition due to melting and refreezing (see Lee v Ilyasov, 95 AD3d 1205; Ricca v Ahmud, 40 AD3d 728). Neither has he established as a matter of law that the sand which he claims to have spread on the sidewalk was sufficient to abate any such hazard as may have subsequently arisen. In view of the foregoing, defendant Augylius is not entitled to summary judgment.
However, the same cannot be said of the municipal co-defendant, whose prima facie showing that it neither created nor had actual or constructive notice of the subject ice patch and/or sufficient time after the outset of freezing temperatures to remedy the alleged condition is unrebutted (see Valentine v City of New York, 86 AD2d 381, affd 57 NY2d 932; cf. Urban v City of New York, 90 AD3d 1132). It is also worthy of note that plaintiff's unsupported contention that the cracked and unlevel sidewalk contributed to the [*4]formation and/or accumulation of ice is based solely on speculation and, therefore, fails to raise a triable issue of fact (see Mayo v Cedar Manor Mut. Hous. Corp., 96 AD3d 913).
Accordingly, it is
ORDERED, that the motion of defendant The City of New York is granted, and the complaint and all cross claims against this defendant are hereby severed and dismissed; and it is further
ORDERED, the motion for summary judgment of defendant Donatas Augylius is denied; and it is further
ORDERED, that the Clerk enter judgment and mark his records accordingly.
E N T E R,
Dated: May 21, 2013___/S/__________________________
HON. THOMAS P. ALIOTTA
J.S.C.
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