Gkahopoulos v Feinberg

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[*1] Gkahopoulos v Feinberg 2015 NY Slip Op 50250(U) Decided on February 25, 2015 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 25, 2015
Supreme Court, Queens County

Savvas Gkahopoulos, Plaintiff,

against

Avi Feinberg and S. SHALOM FEINBERG as TRUSTEES of JEAN FEINBERG FAMILY TRUST, Defendant.



8522/2012
Robert J. McDonald, J.

This is an action for damages for personal injuries sustained by plaintiff, Savvas Gkahopoulos, on February 2, 2011, when he allegedly slipped and fell on snow and ice located on a New York City public sidewalk that abutted the premises of the defendant's single family home located at 66-01 Saunders Street, Rego Park, New York. As a result of the fall, the plaintiff, age 65, sustained facial fractures around the nose and eyes.



The plaintiff commenced an action for negligence by filing a summons and verified complaint on April 21, 2012. Issue was joined by the service of defendants' verified answer on or about July 17, 2012. The gravamen of the complaint is that the defendants, as owners of the premises located at 66-01 Saunders Street, Rego Park, New York, were negligent in the maintenance of the premises in causing the public sidewalk in front of the premises to remain in a dangerous, unsafe and slippery condition covered with snow and ice, in failing to warn, in failing to inspect, in knowingly permitting said condition to remain and in failing to take care of the public thoroughfare. Plaintiff claims that the defendant had actual and constructive notice of the accumulation of snow and ice on the sidewalk in front of the premises in that the defendants were aware of the condition and/or caused and created the condition. It is also alleged that the condition existed for such a period of time that defendants, in the exercise of due care, should have recognized and remedied it.

Defendants now move for an order granting summary judgment and dismissing the plaintiff's complaint on the ground that the defendant bears no liability to the plaintiff for negligence due to an allegedly dangerous condition on the sidewalk in front of the subject premises. Defendant contends that they had no duty to remove snow and ice from the public sidewalk, (1) pursuant to the homeowners' exception to the Administrative Code and (2) because the defendants did not exacerbate the condition by their own negligent snow removal efforts.

In support of the motion, defendants' counsel, Scott W. Driver, Esq., submits his own affirmation, dated September 10, 2014; a copy of the pleadings; a copy of the plaintiff's verified Bill of Particulars; a copy of the transcript of the examinations before trial of plaintiff, Savvas Gkahopoulos; and defendant, Avi Feinberg; and photographs of the area where the plaintiff is alleged to have fallen.

Plaintiff, Savvas Gkahopoulos, a retired glazer, testified at an examination before trial on October 23, 2013. He stated that he resides at 66-04 Saunders Street, Queens County. His accident occurred on February 2, 2011, at approximately 11:00 p.m. He stated that it had snowed a couple of days before. His accident occurred on 66th Avenue near Saunders Street and Queens Boulevard across the street from his own home. He was coming from visiting friends in Astoria and got off at the subway station at 67th Avenue. He was walking home on 66th Avenue towards Saunders when he slipped on ice on the sidewalk. He stated that he tried to avoid slipping and walked in the snow but he slipped on ice [*2]that was under the snow. He stated that there was snow all over the area but there was ice underneath the snow. He identified several photographs he took of the condition of the sidewalk both on the night of the accident and on the following morning. The photographs show an icy and snowy condition with a partially clear path in front of two abutting one car garages on the side of the defendant's house. When plaintiff slipped he fell face down hitting his face on the sidewalk. He stated that he did not see any indication that the area had been shoveled and he did not see any sand or salt in the area. After he got up, he crossed Saunders Street, walked home, and called the police precinct on Austin Street. When the officers arrived at the scene he showed them where he fell and they stated that they would file a police report. He stated that in the three days prior to the accident he did not see anyone shoveling or putting sand or salt down in the area where the accident occurred.

Avi Feinberg, age 53, testified at an examination before trial on October 30, 2013. He stated that the legal owner of the premises in front of which the plaintiff fell is The Feinberg Family Trust. Before the Family Trust acquired the property on June 30, 2010, his mother, Jean Feinberg, age 83, was the legal owner of the premises. She still resides at the premises, a single family multi-story home on the corner of Saunders and 66th Avenue. The front of the house is on Saunders Street. The home has two single attached garages on the 66th Avenue side. He believed that his brothers, who periodically lived in the house, had some informal agreement with local teenage boys to participate in snow removal. When looking at the photographs taken of the snow condition in front of the garages he stated that he did not have any recollection if that was the condition that existed on February 2, 2011. He did not recall when the snow fell that week. He stated that it was possible he removed snow from the sidewalk at times during 30 years since he moved from the house. He does not recall visiting the property on February 2 or February 3, 2011. He does not recall observing the condition of the sidewalk as depicted in the plaintiff's photographs. His brother never indicated to him that they had shoveled the sidewalk in front of the garages around the date in question.

Defendants contend that there they are entitled to summary judgment dismissing the complaint because pursuant to § 7-210 of the Administrative Code of the City of New York, owners of single family dwellings have no duty to remove snow and ice from the public sidewalk pursuant to the one family homeowner exception to the Administrative Code, and the testimony of the plaintiff establishes that the defendants did not make the condition worse through any negligent snow removal efforts

Pursuant to Administrative Code of the City of New York § 7-210, owners of real property abutting any sidewalk must maintain the sidewalk in a reasonably safe condition including removing snow, ice or other material from the sidewalk. However, this particular enactment states that it does not apply to one, two or three-family residential property that is owner occupied and used exclusively for residential purposes. Counsel asserts that the testimony of Mr. Feinberg established that the property, although owned in the name of the Feinberg Family Trust, is a single family home where he resided until he was married. He stated that presently his mother who is in her 80s resides there on a full time basis. Therefore, it is asserted that the property is exempt from the liability imposed pursuant to Administrative Code of City of New York § 7-210(b) as it is a one-family house, owner-occupied, and used exclusively for residential purposes. Further defendants assert that the testimony of the plaintiff established that there was no evidence of any type of snow removal having been performed in the area.

Therefore, defendants assert that they has met their prima facie burden of demonstrating that the they are entitled to summary judgment dismissing the plaintiff's complaint, as a matter of law, because the defedants had no duty to shovel the snow where the plaintiff fell and did not make any efforts which would have created or exacerbated the hazardous condition (citing Bi Chan Lin v Po Ying Yam, 62 AD3d 740 [2d Dept. 2009][an owner of property abutting a public sidewalk is under no duty to pedestrians to remove snow and ice that naturally accumulates on the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so. In the absence of such a statute or ordinance, the owner can be held liable only if he or she, or someone on his or her behalf, undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous]).

In opposition, plaintiff's counsel, Nicholas Sciarrino, Esq., cites the defendant's pre-trial testimony in which he testified that he did not know whether his mother hired any type of contracting company to perform snow removal. He stated that he thought his brother who lived in the home periodically may have performed maintenance of the property. He also stated that he was not sure if his mother would periodically do snow removal. He also stated that he believed his brothers had an informal agreement with some local teenage boys to perform snow removal although he did not know if the informal agreement was still in existence. Plaintiff claims, in addition, that notwithstanding the Administrative Code exemption for owner occupied one family residences, the defendants may be held liable for the hazardous [*3]condition the sidewalk if they undertook snow removal efforts that made the naturally occurring condition more hazardous (citing Cuapio v Skrodzki, 106 AD3d 769 [2d Dept. 2013]). Thus, counsel asserts that there are questions of fact with respect to whether the defendant undertook snow removal efforts based upon Feinberg's testimony regarding informal agreements with teenage boys to remove snow and ice from the premises. Plaintiff contends that the informal agreements are enough to establish that the defendant undertook the removal of snow and ice from the sidewalk.

Plaintiff also claims that the homeowner may be held liable for injuries caused by a sidewalk defect if he caused or created same or put the sidewalk to special use. Here, counsel claims that the defendants failed to demonstrate, prima facie, that they did not make a special use of the garages such as for storing vehicles, household items or other personal belongings. In support of this contention the plaintiff submits an affidavit from the plaintiff dated October 20, 2014.

Plaintiff states in his affidavit that during the five years he lived in the area he has personally observed vehicles entering and exiting the garage in front of which he fell on a consistent basis. In addition, he states that the pictures he took after his accident, depict a pathway which had been shoveled and cleared of snow and ice directly in front of the garage. He also states that in the time he has lived in the area he has consistently seen younger individuals shoveling a pathway for pedestrian travel but that their efforts did nor remove all of the snow and ice but only part of it. He states that the photos show that the snow removal was not complete in front of the garages because remnants of snow still remained on many of the portions of the sidewalk in front of the garages. Thus, plaintiff asserts that the evidence submitted raises a question of fact as to whether any snow removal efforts of the defendants created or exacerbated a dangerous condition in the area where the plaintiff fell (citing Karalic v City of New York, 307 AD2d 254 [2d Dept. 2003][the property owners failed to establish as a matter of law that their superintendent's snow removal activities did not cause, create, or otherwise increase the allegedly hazardous icy condition which resulted in the plaintiff's injuries]).

In reply, the defendant asserts that the plaintiff's affidavit is based upon new claims that the sidewalk showed evidence of being shoveled which contradicts his deposition testimony in which he stated that the sidewalk did not look like it had been shoveled. As such, defendants contend that his affidavit has been tailored to defeat the motion or summary [*4]judgment and is therefore, insufficient as a matter of law to raise a question of fact (citing Miller v. City of New York, 214 AD2d 657 [2d Dept. 1995][the belated assertion that a sidewalk had been shoveled after testifying that the sidewalk looked like it had not been shoveled was merely an attempt to avoid the consequences of dismissal by raising a feigned factual issue]).

Further, defendants assert that although the plaintiff claims that the homeowner made a special use of the sidewalk as a driveway for the garages, the plaintiff failed to show how the special use caused or created a dangerous condition on the sidewalk. Counsel asserts that the photographs do not show any tire tracks on the snow which may have caused an icy condition on the sidewalk. Lastly, defendants assert that even if the defendants did undertake to remove snow from the sidewalk the courts have held that the failure to remove all snow and ice from a pubic sidewalk is not necessarily evidence of negligence (citing John v City of New York, 77 AD3d 792 [2d Dept. 2010]).

Upon review and consideration of the defendants' motion, the plaintiff's affirmation in opposition, and the defendants' reply thereto, this court finds that the evidence submitted by the defendants is insufficient to demonstrate, prima facie, that the defendants did not create the icy condition through a special use, or to demonstrate that the defendants did not engage in snow removal efforts on the sidewalk in question or that the that their snow removal efforts, if any, did not create or increase the risk of the existing hazard.

Although a homeowner is exempt from shoveling New York City sidewalks abutting their premises pursuant to Administrative Code of the City of New York § 7-210, a homeowner can be held liable where they, or someone on their behalf, undertook snow and ice removal efforts which made the natural conditions more hazardous (see Herskovic v 515 Ave. I Tenants Corp., 997 NYS2d 907[2d Dept. 2015][a property owner that elects to engage in snow removal activities must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by a storm ]; Arashkovitch v City of New York, 123 AD3d 853 [2d Dept. 2014]; Roger v Homestead Renovations, LLC, 119 AD3d 668 [2d Dept. 2014]; Gwinn v Christina's Polish Rest., Inc., 117 AD3d 789 [2d Dept. 2014]; Viera v Rymdzionek, 112 AD3d 915 [2d dept. 2013]; Lee v Ilyasov, 95 AD3d 1205 [2d Dept. 2012]).

Here, the defendant failed to eliminate all triable issues of fact as to whether the snow and ice condition upon which the plaintiff allegedly slipped and fell was created by its snow removal efforts (see Gwinn v Christina's Polish Rest., Inc; [*5]supra; Viera v Rymdzionek, supra; Wei Wen Xie v Ye Jiang Yong, 111 AD3d 617 [2d Dept. 2013]; Cotter v Brookhaven Mem. Hosp. Med. Ctr., Inc., 97 AD3d 524 [2d Dept. 2012]; Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d 1177 [2d Dept. 2012]).

The defendant's witness, Avi Feinberg, testified that he has not resided in the home for over 30 years. He did not know if his mother, who did reside in the premises, hired anyone to maintain the exterior of the property including shoveling snow. Neither he nor his brother made any arrangements for maintenance of his mother's home. He did not know if his mother did the shoveling. He believed that his brother had an arrangement with teenage boys to participate in snow removal. He stated that he never asked his mother if she made any attempt to shovel snow around the time of the accident. He did not recall having a conversation with his brothers regarding removal of snow. He has no recollection of the condition of the property on the date of the accident. Thus, the defendant's witness was not able state or to provide any factual evidence that anyone from the premises did not undertake snow removal or did not hire anyone to undertake snow removal.

Moreover, the photographs submitted by the defendant taken at the time of the accident, depicts the area where the plaintiff slipped and shows an area that appears to have been shoveled with snow piled up on the sidewalk. Although the plaintiff testified that he did not think the area was shoveled, the photographs do not rule out, as a matter of law, that a partial path was shoveled in the area and that melting and freezing of the snow could have resulted in a freezing condition underneath the snow which caused the plaintiff's slip and fall (see Braun v Weissman, 68 AD3d 797 [2d Dept. 2009]).

Therefore, based upon Mr. Feinberg's testimony that he had no information regarding if there was or was not snow removal efforts on behalf of the owner, and based upon the photographs depicting a partially cleared path in front of the defendant's garages with snow piled up along the curb, this Court finds that there is a question of fact as to whether snow removal efforts were undertaken by the defedants and whether the ice condition on which plaintiff claims he slipped could have been created by the partial or negligent snow removal efforts on behalf of the defedants (See Herskovic v 515 Ave. I Tenants Corp., 997 N.Y.S.2d 907 [2d Dept. 2015]; Gwinn v Christina's Polish Rest., Inc., 117 AD3d 789 [2d Dept. 2014]).

Since the defendant failed to meet its prima facie burden as the moving party, it is not necessary to consider whether the papers submitted in opposition to the motion were sufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 [*6]NY2d 320 [1986]).

Accordingly, for all of the above stated reasons, it is hereby,

ORDERED, that the defendants' motion for summary judgment is denied.

Dated: February 25, 2015

Long Island City, NY

______________________________ROBERT J. MCDONALD

J.S.C.