| Joseph v Pitkin Carpet, Inc. |
| 2007 NY Slip Op 07765 [44 AD3d 462] |
| October 16, 2007 |
| Appellate Division, First Department |
| Elizabeth Joseph, Respondent, v Pitkin Carpet, Inc.,Appellant. |
—[*1] Pollack, Pollack, Isaac & DeCicco, New York City (Brian J. Isaac of counsel), forrespondent.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered on or about June 27,2006, which denied defendant's motion for summary judgment dismissing the complaint,unanimously reversed, on the law, without costs, the motion granted and the complaintdismissed. The Clerk is directed to enter judgment accordingly.
At approximately 7:00 a.m. on December 15, 2003, plaintiff slipped and fell on the sidewalkabutting defendant's premises. At her deposition, plaintiff testified that the accident occurredwhen one (or both) of her feet slipped on a portion of the sidewalk that was partially covered bysnow and partially cleared. Plaintiff had traversed the same sidewalk twice on the afternoonbefore the accident, the second time at 2:00 p.m. At that time, plaintiff noticed that the majorityof the sidewalk in the area where she would later slip and fall was "bare," i.e., was not coveredwith snow, but patches of snow were present. Plaintiff also noticed on the day before the accidentthat "part" of the sidewalk had been shoveled; she observed shovel marks in the snow on thesidewalk. When asked to approximate the amount of snow on the sidewalk on the afternoonbefore the accident, plaintiff could only state "not much."
As plaintiff acknowledged, snow fell on December 13. Based on its custom and practice,defendant attempted to remove the snow from the sidewalk. No snow fell between the cessationof the December 13 storm and approximately 10:00 p.m. the following evening, when anothersnowfall occurred. Plaintiff did not know when the December 14 storm tapered off; however, itceased before she left her apartment on the morning of December 15, approximately 15 minutesbefore she fell.
Plaintiff commenced this action against defendant, claiming that defendant's snow removalefforts on December 13 were incomplete and made the sidewalk more dangerous than haddefendant not taken any action at all. Defendant moved for summary judgment dismissing thecomplaint on the ground, among others, that its snow removal efforts did not make the conditionof the sidewalk more hazardous. Supreme Court denied the motion, and this appeal followed.
Absent a statute to the contrary, one who attempts to remove snow from a sidewalk is notsubject to liability simply because he or she failed to remove all of the snow (Sanders v City of New York, 17 AD3d169, 169 [2005], citing Spicehandler v City of New York, 303 NY 946[*2][1952], affg 279 App Div 755 [1951]). However, one maybe held liable if his or her snow removal efforts made the sidewalk more dangerous, i.e.,increased the hazard posed by the snow (Sanders, supra; Glick v City of NewYork, 139 AD2d 402 [1988]). Here, defendant made a prima facie showing that its snowremoval efforts did not exacerbate the condition of the sidewalk. The evidence submitted bydefendant—the affidavit and deposition testimony of its proprietor and the depositiontestimony of plaintiff—establishes that defendant's snow removal efforts on December 13were simply incomplete; defendant failed to remove all of the snow that was on thesidewalk. That evidence also establishes that defendant did not make the sidewalk any morehazardous as a result of its snow removal efforts (cf. e.g. Santiago v New York City Hous.Auth., 274 AD2d 335 [2000] [snow piled on both sides of pathway melted, refroze andformed icy condition]; Rector v City of New York, 259 AD2d 319 [1999] [preexistingice exposed as a result of defendant's snow-clearing efforts]). To the contrary, followingdefendant's December 13 snow removal efforts, most of the sidewalk was clear and no ice waspresent.
In opposition, plaintiff, who offered only her attorney's affirmation in response to the motion,failed to raise a triable issue of fact. Plaintiff's claim that defendant's snow removal efforts madethe condition of the sidewalk more hazardous is unsupported by any evidence, constitutes rankspeculation and is insufficient to defeat defendant's motion for summary judgment (see Williams v KJAEL Corp., 40AD3d 985 [2007]; Zabbia vWestwood, LLC, 18 AD3d 542 [2005]; Nadel v Cucinella, 299 AD2d 250[2002]; Yen Hsia v City of New York, 295 AD2d 565 [2002]; see also Bonfrisco vMarlib Corp., 30 AD2d 655 [1968], affd 24 NY2d 817 [1969]).Concur—Tom, J.P., Saxe, Friedman, Gonzalez and McGuire, JJ.