| Espinell v Dickson |
| 2008 NY Slip Op 09638 [57 AD3d 252] |
| December 9, 2008 |
| Appellate Division, First Department |
| Michael Espinell, Appellant, v Edwin N. Dickson et al.,Respondents. |
—[*1] Gannon, Rosenfarb & Moskowitz, New York (Jaclyn D. Mitchell of counsel), forrespondents.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered February 29, 2008,which, to the extent appealed from as limited by the brief, granted defendants' motion forsummary judgment dismissing the complaint, affirmed, without costs.
Plaintiff slipped and fell on a patch of ice on the sidewalk, at the curb in front of defendants'building at 8:45 a.m. The record establishes that it had rained, snowed and sleeted during thepreceding day and night, that any precipitation that could have caused the icy condition,including the freezing drizzle of the early morning hours, had ceased by 6:00 a.m., and that snowflurries fell until approximately 7:00 a.m. The record is devoid of evidence that defendant createdor was aware of the icy condition on the sidewalk with sufficient time to correct it, or that thecondition existed long enough that defendant should have been aware of its existence. Plaintifftestified at his deposition that prior to falling, he did not see any ice at the site of the accident, nordid he observe any other ice or snow on the ground.
"[I]t is settled that the duty of a landowner to take reasonable measures to remedy adangerous condition caused by a storm is suspended while the storm is in progress, and does notcommence until a reasonable time after the storm has ended" (Pippo v City of New York, 43 AD3d 303, 304 [2007]). This Courthas further held that "[a] reasonable time is that period within which the [landowner] should havetaken notice of the icy condition and, in the exercise of reasonable care, remedied it by clearingthe sidewalk or otherwise eliminating the danger" (Valentine v City of New York, 86AD2d 381, 383 [1982], affd 57 NY2d 932 [1982]).
As a matter of law, defendants should not be held liable for plaintiff's injuries. As noted, therecord shows that defendants lacked actual or constructive notice of the icy condition—dueto the fact that the icy condition was not readily visible and to the relatively short, early morninginterval between the end of the storm and the accident—and presents no evidence thatdefendants created the hazard (see Gordon v American Museum of Natural History, 67NY2d 836, 837-838 [1986]; Garcia v New York City Hous. Auth., 183 AD2d 619, 620[1992]). Although the report filed by the New York City Fire Department emergency medicaltechnician (EMT) who responded to the accident states that the site of the accident was very icy,it does not indicate whether the EMT personally observed such condition, or was merelyrecounting plaintiff's after-the-fact explanation of the accident. This case is factuallydistinguishable from Powell v MLG [*2]Hillside Assoc.(290 AD2d 345 [2002]). In that case, the landlord had actual notice that the hazard existed, sincethere was visible snow on the ground, which, approximately an hour after cessation of the storm,he had sought to have the custodian remove, and the interim between the end of the storm andthe accident was longer. Concur—Friedman, Nardelli, Williams and Freedman, JJ.
Mazzarelli, J.P., dissents in a memorandum as follows: Plaintiff slipped and fell on a patchof ice in front of defendants' building at 8:45 a.m. on December 15, 2003. Certifiedmeteorological records submitted by plaintiff demonstrated that on the day before the accidentapproximately five inches of snow fell over a period of seven hours. The snow ended at about3:00 p.m., before changing to rain for the remainder of that day. Most of the snow and icemelted, but a trace of snow and ice remained at the end of the day on exposed, untreated,undisturbed outdoor surfaces. On the day of the accident, the rain changed to sleet at about 4:00a.m. and continued until 6:00 a.m. Thereafter, a trace of snow fell, stopping at 7:00 a.m.According to an uncontradicted affidavit submitted by plaintiff's meteorological expert, the icewhich caused plaintiff's accident was created by the combination of precipitation that fell duringthe preceding day and until 6:00 a.m. on December 15.
Defendants moved for summary judgment, arguing that plaintiff could not establish that theyhad actual or constructive notice of the icy condition in sufficient time to remedy it before theaccident. The court agreed, holding that there was "no evidence at all" that defendants eithercreated the icy condition or were aware of it in time to clear it, or that an icy condition hadexisted for a long enough time that defendants should have been aware of its existence.
There is no question that, under the "storm in progress" doctrine, any duty defendants had toremedy the icy condition existed no earlier than 6:00 a.m., when all precipitation but a traceamount of snow ceased falling. Rather, the question is whether defendants established that, as amatter of law, the two hours and 45 minutes between the end of the storm and the accident didnot provide defendants with sufficient opportunity to clean the sidewalk. To decide that questionrequires a close review of the record facts.
As described above, an appreciable winter storm occurred the day before the accident, andcontinued until the following morning. The ice on which plaintiff slipped covered approximatelyfour feet of the sidewalk and was "right in front" of defendants' building. Defendant Edwin N.Dickson lived in an apartment on the second floor of the building and was there on the day of theaccident. He acted as his own superintendent and personally handled snow and ice removal. Hekept on site several snow shovels and an ice chopper. His practice and procedure around the timeof the accident was that when he knew there had been a storm he would look out a window onthe first floor of the building, and that he would then clean away snow and sand and salt the areaoutside the building, including the precise area where plaintiff fell. This practice applied even if astorm occurred overnight; indeed, Mr. Dickson recounted at his deposition that he and his sononce went downstairs at 1:00 a.m. to remove accumulated snow and ice. However, he did notrecall whether he or his son (who also lived at the building and helped him with snow and iceremoval) cleaned any ice or snow on the day of plaintiff's accident.
This Court has held that " '[there] is no formula for determining liability on the basis of [*3]any ratio between the number of inches of snowfall and the timeelapsed before the happening of the accident and, ordinarily . . . these factors, aswell as all the other conditions, constitute a jury question' " (Valentine v City of NewYork, 86 AD2d 381, 386 [1982], affd 57 NY2d 932 [1982], quoting Yonki v Cityof New York, 276 App Div 407, 410 [1950]). In both of those cases, the plaintiffs slipped onice or snow resulting from an historic storm, a 25.8 inch snowfall in Yonki, and an icestorm in Valentine that was described as the second worst in the preceding 50 years. Wedetermined that in each case the City established that it acted reasonably in deploying itssanitation crews first to clear roadways and areas of heavy pedestrian traffic, and only then toclear sidewalks on secondary and tertiary streets such as those where the accidents occurred.Accordingly, we determined, as a matter of law, that under those circumstances it was notunreasonable for the City not to have remedied the wintry conditions encountered by theplaintiffs even though, in Yonki, the accident occurred 60 hours after the cessation of thestorm, and, in Valentine, 30¼ hours.
However, the facts here are dramatically different from those in Yonki andValentine. Indeed, they are much closer to the facts in Gonzalez v American Oil Co. (42 AD3d 253 [2007]). In that case,this Court affirmed Supreme Court's holding that issues of fact on the question of constructivenotice precluded summary judgment. In Gonzalez, the plaintiff slipped on athree-foot-by-six-foot patch of ice which was six feet from the entrance of a gasoline stationconvenience store. On the day of the accident only a trace amount of snow fell, but none withinthree to four hours before the accident. On the preceding day, 2.8 inches of snow had fallen. Thedefendant generally performed ice and snow removal on an "as needed" basis, but had no recordsof having performed maintenance around the time in question. This Court held, based on, amongother things, the size of the ice patch and the fact that it was transparent, that it had been there forat least three hours before the accident occurred. The Court wrote that
"[i]f the ice was there that long, even if it were transparent, defendants should havediscovered it, and would have had they made any reasonable effort to keep the area clear of iceand snow.
"From these facts—the large size of the ice patch, its consistency as well as its closeproximity to the store's front door, and defendants' failure to perform any meaningfulmaintenance—one could reasonably conclude that defendants should have discovered thiscondition well before plaintiff's fall and remedied it" (42 AD3d at 256).
Here, plaintiff testified that the patch of ice on which he fell covered a four footarea—smaller than the area in Gonzalez, but significant enough that an issue offact exists as to whether defendants should have noticed it.[FN*]In addition, as in Gonzalez, the ice patch was close in [*4]proximity to defendants' building. Moreover, the amount of timewhich elapsed here is only 15 minutes less than the amount at issue in Gonzalez. Alsosimilar to Gonzalez, defendants in this case indicated that they would have been able toremedy the icy condition immediately upon becoming aware of it. Indeed, Mr. Dickson testifiedthat his custom when there had been wintry precipitation overnight was to inspect the sidewalkoutside the property immediately upon rising in the morning. The majority's observation thatconstructive notice was absent as a matter of law because of the "short, early morning intervalbetween the end of the storm and the accident," is simply not supported by the record.
This Court has held that two hours is not as a matter of law insufficient time to create a dutyto clean ice (see Powell v MLG Hillside Assoc., 290 AD2d 345 [2002]). InPowell, this Court stated: "In applying [the 'storm in progress'] rule in derogation ofliability, we should be less concerned with what was happening at the very moment of theaccident. More relevant is what was happening during the period immediately preceding theaccident. If only trace amounts fell during the two to three hours prior to plaintiff's accident anddefendants' custodian was present, then it is reasonable to ask whether the custodian should havebeen shoveling the accumulated snow. This record calls for determination by a trier of facts, not arote application of a rule of law." (290 AD2d at 346; see Tucciarone v Windsor OwnersCorp., 306 AD2d 162, 163 [2003] [passage of "several hours" between cessation of stormand accident created issue of fact as to reasonableness of defendant's delay in removing snow].)In this case the record requires a determination by a trier of fact as to whether there was sufficienttime to remedy the dangerous condition. Accordingly, I would reverse the motion court's orderand reinstate the complaint.
Footnote *: It is unclear from the recordwhether plaintiff, in describing the ice patch, was referring to its total area or simply the length ofsidewalk it occupied. If the latter, the patch could have been closer to the 18-square-foot icepatch in Gonzalez.