Williams v City of New York

2005 NYSlipOp 05382

June 23, 2005

Appellate Division, First Department

As corrected through Wednesday, August 24, 2005

Emma Williams, Appellant, v City of New York et al., Respondents, et al., Defendants.

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Order, Supreme Court, New York County (Michael D. Stallman, J.), entered July 8, 2004, which, in an action for personal injuries sustained when plaintiff slipped and fell on snow and/or ice in front of defendant-respondent lessee's premises, insofar as appealed from, granted the lessee's cross motion for summary judgment dismissing the complaint as against it, and, sua sponte, dismissed the complaint as against defendant-respondent City of New York, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered August 25, 2004, which deemed plaintiff's motion to reargue and renew as one to reargue only, and, so considered, denied the motion, unanimously dismissed as taken from a nonappealable order, without costs.

Plaintiff fails to adduce any evidence that the lessee made any attempts to remove the second snowfall from in front of its premises (see Gaudino v 511 W. 232nd St. Owners Corp., 279 AD2d 272 [2001]), and her claim that she slipped on ice that resulted from the lessee's negligent efforts to remove the first snowfall is speculative (see Nadel v Cucinella, 299 AD2d 250 [2002]). Concerning the City, there is no evidence that it had actual or constructive notice of the piling of snow in the nearby tree well that allegedly caused the sidewalk to be dangerously icy, or that a sufficient period of time had elapsed to allow the City to remedy that condition (see Valentine v City of New York, 86 AD2d 381 [1982], affd 57 NY2d 932 [1982]; Epstein v City of New York, 250 AD2d 547 [1998]). The motion court properly deemed plaintiff's motion to reargue and renew as one solely to reargue, the denial of which is not appealable, since plaintiff did not present any new or previously unavailable facts in support thereof (see Lichtman v Mount Judah Cemetery, 269 AD2d 319, 320 [2000], lv dismissed 95 NY2d 860 [2000]). Concur—Buckley, P.J., Marlow, Sullivan, Gonzalez and Sweeny, JJ.