| Ferguson v Shu Ham Lam |
| 2010 NY Slip Op 04948 [74 AD3d 870] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Beth Anna Ferguson, Respondent-Appellant, v Shu HamLam et al., Defendants/Third-Party Defendants-Appellants-Respondents, and 104-50 48th Ave.Corp., Defendant/Third-Party Plaintiff-Respondent. |
—[*1] Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Mark R.Bernstein of counsel), for respondent-appellant. Ira Levine, Great Neck, N.Y., for defendant/third-party plaintiff-respondent.
In an action to recover damages for personal injuries, the defendants/third-party defendantsappeal from an order of the Supreme Court, Queens County (Grays, J.), entered July 30, 2008,which denied their cross motion for summary judgment dismissing the complaint insofar asasserted against them and dismissing the third-party complaint, and granted thedefendant/third-party plaintiff's motion for summary judgment dismissing the complaint insofaras asserted against it and dismissing the counterclaims asserted by them against thedefendant/third-party plaintiff, and the plaintiff cross-appeals, as limited by her notice of appealand brief, from so much of the same order as granted that branch of the defendant/third-partyplaintiff's motion which was for summary judgment dismissing the complaint insofar as assertedagainst it.
Ordered that the appeal by the defendants/third-party defendants from so much of the orderas granted that branch of the defendant/third-party plaintiff's motion which was for summaryjudgment dismissing the complaint insofar as asserted against it is dismissed, as thedefendants/third-party defendants are not aggrieved by that portion of the order appealed from(see CPLR 5511); and it is further,
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the defendant/third-party plaintiff's motion which were for summary judgmentdismissing the complaint insofar as asserted against it and dismissing the counterclaim assertedby the third-party defendants against it for contribution, and substituting therefor a provisiondenying those branches of the motion; as so modified, the order is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff and the defendants/third-partydefendants appearing separately and filing separate briefs, payable by the defendant/third-party[*2]plaintiff.
On January 22, 2001, the defendant 104-50 48th Ave. Corp. (hereinafter the corporation)conveyed to the defendants Shu Ham Lam and Zhao Fang Lam (hereinafter together the Lams)certain real property located in Queens. Two days later, on January 24, 2001, the plaintiffallegedly slipped and fell on a "plate of ice" on the sidewalk in front of the subject property andsustained injuries.
"In slip-and-fall cases on snow or ice, the general rule is that an 'owner or lessee of propertyabutting a public sidewalk is under no duty to remove ice and snow that naturally accumulatesupon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to doso' " (Robles v City of New York,56 AD3d 647, 647 [2008], quoting Bruzzo v County of Nassau, 50 AD3d 720, 721 [2008]). We notethat, while Administrative Code of the City of New York § 7-210 imposes tort liability oncertain parties for, inter alia, negligent failure to remove snow and ice, that statute did not go intoeffect until September 14, 2003, and is not applicable here (see Robles v City of NewYork, 56 AD3d at 647; Bisontt vRockaway One Co., LLC, 47 AD3d 862, 863 [2008]).
"In the absence of a statute or ordinance, an owner or lessee of property abutting a publicsidewalk may be held liable where it 'undertook snow and ice removal efforts which made thenaturally-occurring conditions more hazardous' " (Robles v City of New York, 56 AD3dat 647, quoting Bruzzo v County of Nassau, 50 AD3d at 721; see Bisontt vRockaway One Co., LLC, 47 AD3d at 863; Reynolds v Gendron, 28 AD3d 735, 736 [2006]; Artis v City of New York, 24 AD3d477, 478 [2005]).
The Supreme Court erred in granting that branch of the corporation's motion which was forsummary judgment dismissing the complaint insofar as asserted against it. The corporation failedto establish its prima facie entitlement to judgment as a matter of law by eliminating all triableissues of fact concerning, inter alia, who shoveled the snow on the sidewalk where the plaintifffell, specifically whether its employees or agents shoveled the sidewalk, and when the sidewalkwas shoveled. Thus, the corporation failed to demonstrate as a matter of law that it did not createor exacerbate the icy condition which allegedly caused the plaintiff to fall (see Robles v Cityof New York, 56 AD3d at 647-648; Artis v City of New York, 24 AD3d at 478;Lopez v City of New York, 290 AD2d 539, 539-540 [2002]).
The Supreme Court properly granted that branch of the corporation's motion which was forsummary judgment dismissing the counterclaim asserted against it by the Lams forindemnification because the Lams's alleged liability was based on their own negligence, ratherthan a theory of vicarious liability (see Kagan v Jacobs, 260 AD2d 442, 442-443 [1999];Henderson v Waldbaums, 149 AD2d 461, 462 [1989]). However, in light of ourdetermination that the Supreme Court improperly granted that branch of the corporation's motionwhich was for summary judgment dismissing the complaint insofar as asserted against it, thatbranch of the corporation's motion which was for summary judgment dismissing thecounterclaim for contribution also was improperly granted.
The Supreme Court also properly denied the Lams's cross motion for summary judgmentdismissing the complaint insofar as asserted against them and for summary judgment dismissingthe third-party complaint. There was no showing of newly-discovered evidence or othersufficient cause to warrant entertaining their successive summary judgment motion (see Sutter v Wakefern Food Corp., 69AD3d 844 [2010]). In any event, like the corporation, the Lams failed to eliminate all triableissues of fact as to whether, inter alia, they or their agents performed snow removal on thesidewalk and, if so, when. Thus, the Lams also failed to demonstrate their entitlement tojudgment as a matter of law by establishing, among other things, that they did not create orexacerbate the alleged icy condition which caused the plaintiff to fall (see Robles v City ofNew York, 56 AD3d at 647-648; Artis v City of New York, 24 AD3d at 478;Lopez v City of New York, 290 AD2d at 539-540).
The plaintiff's remaining contention is without merit. Mastro, J.P., Dickerson, Belen andRoman, JJ., concur.