Candelier v. City of New York

• Decision Date: 23 June 1987
• Citation: 517 N.Y.S.2d 486,129 A.D.2d 145
• Parties: Juan M. CANDELIER, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 486

517 N.Y.S.2d 486

129 A.D.2d 145

Juan M. CANDELIER, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

June 23, 1987.

Zeitlan & Zeitlan, P.C. and Alexander J. Wulwick, New York City, for plaintiff-appellant.

Dana Robbins, of counsel (Larry A. Sonnenshein, with her on the brief; Peter L. Zimroth, New York City, attorney), for defendant-respondent.

Before SANDLER, J.P., and SULLIVAN, ROSS, MILONAS and ROSENBERGER, JJ.

SULLIVAN, Justice.

At about 7:30 a.m. on February 15, 1978, plaintiff, a 21-year-old student, stepped off a bus and onto an ice-covered sidewalk at the northeast corner of 145th Street and Amsterdam Avenue in Manhattan, and began walking south on Amsterdam Avenue. After taking about ten steps, he slipped and fell, suffering a fracture of the left ankle. The building in front of which plaintiff fell housed a family care facility and was owned by the City of New York.

The United States Weather Bureau's observatory in Central Park had recorded a total of 17.7 inches of snowfall on February 6 and 7, eight days before the accident. No further precipitation occurred until February 13, when 1.1 inches of snow fell, which was followed by 3.1 inches on February 14, the day before the accident. The weather report also indicated that the temperature during the period from February 6 to February 15 hovered between sixteen and thirty-six degrees. On February 14, the low temperature was twenty-six degrees and the high thirty-three degrees, while on February 15, the low was eighteen and the high thirty-four degrees.

Plaintiff testified that he did not observe any snow in the middle of the street or piles of snow at the corner when he exited from the bus. He described the ice, which he could not avoid and which completely covered the sidewalk from building line to curb, as one or two inches thick, and hard, slippery, bumpy, and uneven. Plaintiff was wearing shoes, not boots, at the time.

The City's only witness, a Sanitation Department district superintendent, related the snow removal procedures for the Manhattan district that included 145th Street and Amsterdam Avenue. Considered a primary street, Amsterdam Avenue receives a high priority for snow removal. The Department's records for the period from February 6 to February 14, 1978 showed that the intersection in question had been plowed, cleared, and salted. In answer to a question as to whether he could tell from the records if the sidewalk near the bus stop had been plowed or cleared, the witness stated, "Well, I would have to say, looking at the records, I would say yes", but he was unable to point to anything in particular in the records to verify that it had been done. In so responding, he was relying on records showing that, on February 10 and 13, front-end loaders, which have maneuverability and are used, inter alia, to clear sidewalks, were being employed in the area encompassing the intersection of 145th Street and Amsterdam Avenue.

At the close of the evidence, the City renewed its motion to dismiss the complaint on the ground that plaintiff had failed to make out a prima facie case, and on the additional ground that the testimony indicated that it had responded reasonably in clearing away the snow after the various storms preceding plaintiff's fall. The City also noted that plaintiff had not offered any evidence of negligence on its part as the owner of the abutting premises. The court granted the City's motion, stating, inter alia, that "was no testimony regarding the condition of the sidewalk on the days prior to the accident in question, the accident occurring on February 15, 1978." The court also noted that, in view of the fact that an additional 3.1 inches of snow had fallen on the day before the accident, "there was no distinction and no testimony regarding any old ice that may have been there and any new ice which allegedly formed at the time of the snowfall on February 14th." Based on that finding, and citing Valentine v. City of New York, 86 A.D.2d 381, 449 N.Y.S.2d 991, affd. 57 N.Y.2d 932, 457 N.Y.S.2d 240, 443 N.E.2d 488, the court found that "the City had to be given a reasonable time in which to remove that snow." This appeal followed. We reverse.

"A motion for judgment at the close of all the evidence is substantially equivalent to one for a directed verdict made at that point" (Lipsius v. White, 91 A.D.2d 271, 276, 458 N.Y.S.2d 928; 4 Weinstein-Korn-Miller, N.Y.Civ.Prac. p 4401.01.) The test to be applied in considering such a motion "is not founded upon a weighing of the evidence, but rather, in taking the case from the jury, the trial court must find 'that by no rational process could the trier of the facts base a finding in favor of the upon the evidence * * * presented'...." (Lipsius v. White, supra at 276-277, 458 N.Y.S.2d 928, quoting Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 245, 54 N.E.2d 809.) In determining whether a prima facie case has been established, the plaintiff's evidence must not only be accepted as true, but accorded the benefit of every favorable inference that may be drawn therefrom. (See, Parvi v. City of Kingston, 41 N.Y.2d 553, 554, 394 N.Y.S.2d 161, 362 N.E.2d 960; Sagorsky v. Malyon, 307 N.Y. 584, 586, 123 N.E.2d 79; Lipsius v. White, supra, 91 A.D.2d at 277, 458 N.Y.S.2d 928; Prince v. City of New York, 21 A.D.2d 668, 250 N.Y.S.2d 107.) As long as the record yields a view of the evidence upon which a jury could rationally find for the plaintiff, he is entitled to have the jury pass upon the case, and the complaint may not be dismissed. (See, Stein v. Palisi, 308 N.Y. 293, 296, 125 N.E.2d 575; see, also, Dillon v. Rockaway Beach Hospital, 284 N.Y. 176, 179, 30 N.E.2d 373.)

Of course, the mere happening of an accident does not constitute negligence. (Ostrowski v. Bd. of Educ. of Coxsackie-Athens Cent. School District, 31 A.D.2d 571, 572, 294 N.Y.S.2d 871; see, also, Abbott v. St. Luke's Mem. Hosp. Center, 38 A.D.2d 176, 179, 327 N.Y.S.2d 799.) In cases where the maintenance of a dangerous condition is alleged, the plaintiff has the burden of establishing such condition and further that the defendant had notice thereof and a reasonable opportunity to correct it or warn of its existence. (Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 249, 472 N.Y.S.2d 368, affd. 64 N.Y.2d 670, 485 N.Y.S.2d 252, 474 N.E.2d 612.) And, as we noted in Valentine, "a municipality is liable for failure to clear snow and ice from its sidewalks only if 'a dangerous condition was created and permitted to exist for such a period as would reasonably have afforded an opportunity to remedy the condition'." (86 A.D.2d at 383-384, 449 N.Y.S.2d 991, quoting Schlausky v. City of New York, 41 A.D.2d 156, 158, 341 N.Y.S.2d 548.)

Plaintiff's case was premised on the claim that the City had negligently permitted the accumulation of snow and ice on the sidewalk where he fell. The standard of care imposed upon a municipality in such cases has been stated as follows:

The rule is well established that a municipality is not liable in negligence for injuries sustained by a pedestrian who slips and falls on an icy sidewalk unless a reasonable time has elapsed between the end of the storm giving rise to the icy condition and the occurrence of the accident A reasonable time is that period within which the municipality 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, supra, 86 A.D.2d at 383, 449 N.Y.S.2d 991.)

A rough, hard, bumpy, and uneven one to two-inch icy condition, such as plaintiff claims existed on the sidewalk where he fell, constitutes an unusual and dangerous condition. (See, Williams v. City of New York, 214 N.Y. 259, 262, 108 N.E. 448; Prince v. City of New York, supra, 21 A.D.2d 668, 250 N.Y.S.2d 107; Smith v. City of New York, 282 App.Div. 495, 496, 125 N.Y.S.2d 123 affd., 307 N.Y. 843, 122 N.E.2d 335.) The testimony of the City's witness that, as a matter of policy, the sidewalks at bus stops in the vicinity of 145th...