| Hevia v Smithtown Auto Body of Long Is., Ltd. |
| 2012 NY Slip Op 00488 [91 AD3d 822] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| Gloria Hevia, Respondent, v Smithtown Auto Body ofLong Island, Ltd., Appellant. (And a Third-Party Action.) |
—[*1] Tinari, O'Connell & Osborn, LLP, Central Islip, N.Y. (Frank A. Tinari of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Cohalan, J.), dated October 25, 2010, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly slipped and fell in the early morning hours as a result of an icy andsnowy condition on a sidewalk abutting premises leased by the defendant. Snow had last fallentwo or three days prior to the date of the incident.
"Generally, liability for injuries sustained as a result of negligent maintenance of or theexistence of dangerous and defective conditions [on] public sidewalks is placed on themunicipality" (Hausser v Giunta, 88 NY2d 449, 452-453 [1996]; see Ferguson v Shu Ham Lam, 74AD3d 870 [2010]). An abutting owner or lessee will be liable to a pedestrian injured by adangerous condition on a public sidewalk only when the owner or lessee either created thecondition or caused the condition to occur because of a special use, or when a statute orordinance places an obligation to maintain the sidewalk on the owner or the lessee and expresslymakes the owner or the lessee liable for injuries caused by a breach of that duty (see Hausserv Giunta, 88 NY2d at 452-453; Cangemi v Burgan, 81 AD3d 583 [2011]; Romano v Leger, 72 AD3d 1059[2010]; Falchook v J & M Kingsley,Ltd., 67 AD3d 632 [2009]; Sachs v County of Nassau, 60 AD3d 1032 [2009]).
Here, Code of Town of Smithtown § 245-5 requires abutting occupants to removesnow and ice from sidewalks and imposes tort liability upon them for injuries caused by theirbreach of that duty. The defendant failed to establish, prima facie, that it complied with thisprovision (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]).Additionally, it failed to establish, prima facie, that it did not have actual or constructive noticeof the alleged hazardous condition which caused the plaintiff to fall (see Plotits v Houaphing D. Chaou,LLC, 81 AD3d 620 [2011]; Baines v G&D Ventures, Inc., 64 AD3d 528 [2009]).[*2]
Accordingly, the Supreme Court properly denied thedefendant's motion for summary judgment dismissing the complaint. Dillon, J.P., Florio,Chambers and Miller, JJ., concur.