| Martinez v Khaimov |
| 2010 NY Slip Op 05370 [74 AD3d 1031] |
| June 15, 2010 |
| Appellate Division, Second Department |
| Ramona Martinez, Appellant, v Mikhail Khaimov et al.,Respondents. |
—[*1] Pieret & Associates, Garden City, N.Y. (Eugene Patrick Devany of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Solomon, J.), dated April 28, 2009, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
The plaintiff alleged that she was injured on the night of February 20, 2007, when sheslipped and fell on a mound of snow located on the public sidewalk adjacent to an eight-unitapartment building in Brooklyn (hereinafter the building) owned by the defendants. Thedefendants do not live in the building. The parties agree that weather records reflect that the lastsnowfall prior to the date of the plaintiff's accident occurred on February 14, 2007.
After the commencement of this action, the defendants moved for summary judgmentdismissing the complaint, arguing, among other things, that they neither created nor hadconstructive notice of the snow condition that allegedly caused the plaintiff to slip and fall(hereinafter the alleged snow mound). The Supreme Court granted the motion and the plaintiffappeals. We reverse.
Section 7-210 of the Administrative Code of the City of New York (hereinafter the SidewalkLaw) imposes tort liability upon certain property owners, including the defendants herein, for thenegligent failure to remove snow and ice from the sidewalk abutting their property. TheSidewalk Law does not impose strict liability upon landowners for injuries arising fromallegedly dangerous conditions on a sidewalk abutting their property (see AdministrativeCode of City of NY § 7-210; Gangemi v City of New York, 13 Misc 3d 1112 [2006]; Padobv 127 E. 23rd St., LLC, NYLJ, Sept. 30, 2005, at 18, col 1). Rather, the injured party has theobligation to prove the elements of negligence to demonstrate that an owner is liable under theSidewalk Law. Specifically, the plaintiff must establish (1) the existence of a duty on thedefendant's part as to the plaintiff, (2) a breach of [*2]this duty,and (3) a resulting injury to the plaintiff (see Gangemi v City of New York, 13 Misc 3dat 1130; Fernandez v 1330 3rd Ave. Corp., 10 Misc 3d 1057[A], 2005 NY Slip Op51995[U] [2005]). As the Sidewalk Law is a municipal ordinance, a violation of the SidewalkLaw is only evidence of negligence (see Elliott v City of New York, 95 NY2d 730, 734[2001]; Pierre-Louis v DeLonghi Am.,Inc., 66 AD3d 857, 858 [2009]).
Further, even in the absence of a statute or ordinance specifically imposing tort liability upona property owner for failing to remove snow and ice that naturally accumulates upon the abuttingpublic sidewalk, the owner of the abutting property may be held liable where it undertook snowand ice removal efforts which made the naturally occurring conditions more hazardous (see Bi Chan Lin v Po Ying Yam, 62AD3d 740, 741 [2009]; Robles vCity of New York, 56 AD3d 647 [2008]; Bisontt v Rockaway One Co., LLC, 47 AD3d 862 [2008]).
Accordingly, to prevail on their summary judgment motion, the defendants were required todemonstrate, as a matter of law, that they neither created the hazardous condition nor had actualor constructive notice of its existence for a sufficient length of time to discover and remedy it (see Totten v Cumberland Farms, Inc.,57 AD3d 653 [2008]; DeFalco vBJ's Wholesale Club, Inc., 38 AD3d 824 [2007]).
The defendants failed to make a prima facie showing that their snow removal efforts at thebuilding did not create or exacerbate the alleged snow mound on the abutting sidewalk whichallegedly caused the plaintiff to fall (see generally Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]). In support of their motion, they proffered, inter alia, the deposition testimonyof the defendant Mikhail Khaimov. Khaimov testified that in February 2007, a part-timeemployee had been responsible for removing snow from the sidewalk adjacent to the building,that Khaimov had never personally undertaken any snow removal efforts at the building, that hedid not keep any records regarding snow removal at the building, and that he had no recollectionof how much snow had fallen in February 2007. Such testimony failed to establish that someoneon the defendants' behalf did not create the alleged snow mound through negligent snow removal(see Robles v City of New York, 56 AD3d at 648; Martinez v City of New York, 20 AD3d 513, 514-515 [2005]).
Moreover, with regard to their potential liability under the Sidewalk Law, the defendantsfailed to establish that they lacked constructive notice of the alleged snow mound (seeGangemi v City of New York, 13 Misc 3d at 1130). "On a motion for summary judgment todismiss the complaint based upon lack of notice, the defendant is required to make a prima facieshowing affirmatively establishing the absence of notice as a matter of law" (Goldman vWaldbaum, Inc., 248 AD2d 436, 437 [1998]). This burden cannot be satisfied merely bypointing out gaps in the plaintiff's case, as the defendants did here (see Pierre-Louis vDeLonghi Am., Inc., 66 AD3d at 859; Baines v G&D Ventures, Inc., 64 AD3d 528, 529 [2009];Totten v Cumberland Farms, Inc., 57 AD3d at 654). Although Khaimov testified at hisdeposition that he inspected the building two or three times a week, he failed to provide anytestimony as to when he last inspected the subject sidewalk prior to the accident or what itlooked like when he last inspected it (see Baines v G&D Ventures, Inc., 64 AD3d at529). Moreover, although the defendants also proffered the plaintiff's deposition testimony thatshe did not remember noticing the snow mound earlier on the day of her accident, the plaintiffdid not testify that she remembered seeing the subject sidewalk without the snow mound on it atany time between her accident and the last prior snowfall. Thus, resolving all reasonableinferences in the manner most favorable to the opponent of the summary judgment motion (see Gray v New York City Tr. Auth.,12 AD3d 638 [2004]), the defendants failed to meet their burden of demonstrating that theallegedly dangerous condition existed for an insufficient length of time for them to havediscovered and remedied it (see Taylorv Rochdale Vil., Inc., 60 AD3d 930, 931-932 [2009]; see generally Gordon vAmerican Museum of Natural History, 67 NY2d 836, 837 [1986]).
Accordingly, the Supreme Court should have denied the defendants' motion for summaryjudgment, regardless of the sufficiency of the plaintiff's opposition papers (see Alvarez vProspect Hosp., 68 NY2d at 324). Mastro, J.P., Dickerson, Belen and Chambers, JJ., concur.