| David v Chong Sun Lee |
| 2013 NY Slip Op 03811 [106 AD3d 1044] |
| May 29, 2013 |
| Appellate Division, Second Department |
| Monty David, Appellant, v Chong Sun Lee,Respondent. (And Third-Party Actions.) |
—[*1] Morgan Melhuish Abrutyn, New York, N.Y. (Erin O'Leary and Joseph DeDonato ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby her brief, from so much of an order of the Supreme Court, Kings County (Ash, J.),dated June 10, 2011, as granted the defendant's motion for summary judgment dismissingthe complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
In February 2003, the plaintiff allegedly slipped and fell on snow and ice on thesidewalk abutting a vacant restaurant owned by the defendant. The plaintiff thereaftercommenced this action to recover damages for personal injuries. The defendant movedfor summary judgment dismissing the complaint, and the Supreme Court granted themotion.
"Unless a statute or ordinance 'clearly imposes liability upon' an abutting landowner,only a municipality may be held liable for the negligent failure to remove snow and icefrom a public sidewalk" (Smalley v Bemben, 12 NY3d 751, 752 [2009] [emphasisomitted], quoting Roark v Hunting, 24 NY2d 470, 475 [1969]; Marx v Great Neck Park Dist.,92 AD3d 925, 926 [2012]; Hilpert v Village of Tarrytown, 81 AD3d 781, 781 [2011]).While Administrative Code of the City of New York § 7-210 imposes tort liabilityon certain parties for, inter alia, negligent failure to remove snow and ice, that statute didnot go into effect until September 14, 2003, and, thus, is not applicable here (see Ferguson v Shu Ham Lam,74 AD3d 870 [2010]; Robles v City of New York, 56 AD3d 647 [2008]). "In theabsence of a statute or ordinance imposing liability, the owner of property abutting apublic sidewalk will be held liable only where it, or someone on its behalf, undertooksnow and ice removal efforts which made the naturally occurring conditions morehazardous" (Hilpert v Village of Tarrytown, 81 AD3d at 782; see Schwint v Bank St. Commons,LLC, 74 AD3d 1312 [2010]; Braun v Weissman, 68 AD3d 797 [2009]).
Here, the defendant established his prima facie entitlement to judgment as a matter oflaw by demonstrating, through the plaintiff's deposition testimony that when she fellthere were several inches of snow on the ground and that the sidewalk abutting therestaurant had not been shoveled at all, that he did not engage in snow removal activitieswhich created or exacerbated any dangerous condition on the sidewalk (see generallyMarx v Great Neck Park Dist., 92 AD3d at 925; Hilpert v Village ofTarrytown, 81 AD3d at 781). Contrary to the plaintiff's contention, the Supreme[*2]Court properly considered the deposition transcriptssubmitted in support of the motion. The unsigned but certified deposition of thedefendant was admissible under CPLR 3116 (a), since the transcript was submitted bythe party deponent himself and, therefore, was adopted as accurate by the deponent (see Rodriguez v Ryder Truck,Inc., 91 AD3d 935, 936 [2012]; Ashif v Won Ok Lee, 57 AD3d 700 [2008]). Additionally,in reply to the plaintiff's opposition, the defendant submitted evidence which showed thatthe plaintiff's certified deposition transcript had been submitted to her for review, but thatshe failed to sign and return it within 60 days. Thus, the plaintiff's deposition transcriptwas properly used as fully as though it were signed (see CPLR 3116 [a]; Franzese v Tanger Factory OutletCtrs., Inc., 88 AD3d 763 [2011]). Moreover, this evidence demonstrating thedefendant's compliance with CPLR 3116 (a) was properly considered in reply because itwas submitted in direct response to allegations raised for the first time in the plaintiff'sopposition papers (see Conte vFrelen Assoc., LLC, 51 AD3d 620, 621 [2008]; Ryan Mgt. Corp. vCataffo, 262 AD2d 628 [1999]).
The plaintiff failed to raise a triable issue of fact in opposition to the defendant'sprima facie showing. The plaintiff's contention that the defendant created the alleged icycondition by negligently piling snow on the sidewalk, which then melted and refrozeover the area in which she fell, was not supported by any evidence other than theconclusory and speculative assertions of an eyewitness to the accident who had beenwalking behind her when she fell (see Lichtman v Village of Kiryas Joel, 90 AD3d 1001[2011]; Ravina v IncorporatedTown of Greenburgh, 6 AD3d 688, 689 [2004]; Myrow v City ofPoughkeepsie, 3 AD3d 480 [2004]; see also McCord v Olympia & York Maiden Lane Co., 8 AD3d634, 636 [2004]).
Accordingly, the Supreme Court properly granted the defendant's motion forsummary judgment dismissing the complaint. Skelos, J.P., Balkin, Dickerson andHinds-Radix, JJ., concur.