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Espinell v. Dickson

December 9, 2008

MICHAEL ESPINELL, PLAINTIFF-APPELLANT,
v.
EDWIN N. DICKSON, ET AL., DEFENDANTS-RESPONDENTS.



Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered February 29, 2008, which, to the extent appealed from as limited by the brief, granted defendants' motion for summary judgment dismissing the complaint, affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Friedman, Nardelli, Williams, Freedman, JJ.

17045/05

Plaintiff slipped and fell on a patch of ice on the sidewalk, at the curb in front of defendants' building at 8:45 A.M. The record establishes that it had rained, snowed and sleeted during the preceding day and night, that any precipitation that could have caused the icy condition, including the freezing drizzle of the early morning hours, had ceased by 6 A.M., and that snow flurries fell until approximately 7 A.M. The record is devoid of evidence that defendant created or was aware of the icy condition on the sidewalk with sufficient time to correct it, or that the condition existed long enough that defendant should have been aware of its existence. Plaintiff testified at his deposition that prior to falling, he did not see any ice at the site of the accident, nor did he observe any other ice or snow on the ground.

"[I]t is settled that the duty of a landowner to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while the storm is in progress, and does not commence until a reasonable time after the storm has ended" (Pippo v City of New York, 43 AD3d 303, 304 [2007]). This Court has further held that "[a] reasonable time is that period within which the [landowner] should have taken notice of the icy condition and, in the exercise of reasonable care, remedied it by clearing the sidewalk or otherwise eliminating the danger" (Valentine v City of New York, 86 AD2d 381, 383 [1982], affd 57 NY2d 932 [1982]).

As a matter of law, defendants should not be held liable for plaintiff's injuries. As noted, the record shows that defendants lacked actual or constructive notice of the icy condition - due to the fact that the icy condition was not readily visible and to the relatively short, early morning interval between the end of the storm and the accident - and presents no evidence that defendants created the hazard (see Gordon v American Museum of Natural History, 67 NY2d 836, 837-838 [1986]; Garcia v New York City Hous. Auth., 183 AD2d 619, 620 [1992]). Although the report filed by the New York City Fire Department emergency medical technician (EMT) who responded to the accident states that the site of the accident was very icy, it does not indicate whether the EMT personally observed such condition, or was merely recounting plaintiff's after-the-fact explanation of the accident. This case is factually distinguishable from Powell v MLG Hillside Assoc. (290 AD2d 345 [2002]). In that case, the landlord had actual notice that the hazard existed, since there was visible snow on the ground, which, approximately an hour after cessation of the storm, he had sought to have the custodian remove, and the interim between the end of the storm and the accident was longer.

All concur except Mazzarelli, J.P. who dissents in a memorandum as follows:

MAZZARELLI, J.P. (dissenting)

Plaintiff slipped and fell on a patch of ice in front of defendants' building at 8:45 a.m. on December 15, 2003. Certified meteorological records submitted by plaintiff demonstrated that on the day before the accident approximately five inches of snow fell over a period of seven hours. The snow ended at about 3:00 P.M., before changing to rain for the remainder of that day. Most of the snow and ice melted, but a trace of snow and ice remained at the end of the day on exposed, untreated, undisturbed outdoor surfaces. On the day of the accident, the rain changed to sleet at about 4:00 A.M. and continued until 6:00 A.M. Thereafter, a trace of snow fell, stopping at 7:00 A.M. According to an uncontradicted affidavit submitted by plaintiff's meteorological expert, the ice which caused plaintiff's accident was created by the combination of precipitation that fell during the preceding day and until 6:00 A.M. on December 15.

Defendants moved for summary judgment, arguing that plaintiff could not establish that they had actual or constructive notice of the icy condition in sufficient time to remedy it before the accident. The court agreed, holding that there was "no evidence at all" that defendants either created the icy condition or were aware of it in time to clear it, or that an icy condition had existed for a long enough time that defendants should have been aware of its existence.

There is no question that, under the "storm in progress" doctrine, any duty defendants had to remedy the icy condition existed no earlier than 6:00 A.M., when all precipitation but a trace amount of snow ceased falling. Rather, the question is whether defendants established that, as a matter of law, the 2 hours and 45 minutes between the end of the storm and the accident did not provide defendants with sufficient opportunity to clean the sidewalk. To decide that question requires a close review of the record facts.

As described above, an appreciable winter storm occurred the day before the accident, and continued until the following morning. The ice on which plaintiff slipped covered approximately four feet of the sidewalk and was "right in front" of defendants' building. Defendant Edwin N. Dickson lived in an apartment on the second floor of the building and was there on the day of the accident. He acted as his own superintendent and personally handled snow and ice removal. He kept on site several snow shovels and an ice chopper. His practice and procedure around the time of the accident was that when he knew there had been a storm he would look out a window on the first floor of the building, and that he would then clean away snow and sand and salt the area outside the building, including the precise area where plaintiff fell. This practice applied even if a storm occurred overnight; indeed, Mr. Dickson recounted at his deposition that he and his son once went downstairs at 1:00 A.M. to remove accumulated snow and ice. However, he did not recall whether he or his son (who also lived at the building and helped him with snow and ice removal) cleaned any ice or snow on the day of plaintiff's accident.

This Court has held that "'[there] is no formula for determining liability on the basis of any ratio between the number of inches of snowfall and the time elapsed before the happening of the accident and, ordinarily...these factors, as well as all the other conditions, constitute a jury question'" (Valentine v City of New York, 86 AD2d 381, 386 [1982], quoting Yonki v City of New York [276 App Div 407, 410 (1950)], affd 57 NY2d 932 [1982]). In both of those cases, the plaintiffs slipped on ice or snow resulting from an historic storm, a 25.8 inch snowfall in Yonki, and an ice storm in Valentine that was described as the second worst in the preceding 50 years. We determined that in each case the City established that it acted reasonably in deploying its sanitation crews first to clear roadways and areas of heavy pedestrian traffic, and only then to clear sidewalks on secondary and tertiary streets such as those where the accidents occurred. Accordingly, we determined, as a matter of law, that ...


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