David v. Chong Sun Lee

• Decision Date: 29 May 2013
• Parties: Monty DAVID, appellant, v. CHONG SUN LEE, respondent (and third-party actions).
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1044

967 N.Y.S.2d 80

2013 N.Y. Slip Op. 03811

Monty DAVID, appellant,

v. CHONG SUN LEE, respondent(and third-party actions).

Supreme Court, Appellate Division, Second Department, New York.

May 29, 2013.

George Poulos, Astoria, N.Y. (Michael S. Murphy of counsel), for appellant.

Morgan Melhuish Abrutyn, New York, N.Y. (Erin O'Leary and Joseph DeDonato of counsel), for respondent.

PETER B. SKELOS, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and SYLVIA HINDS–RADIX, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by 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 dismissing the 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 the sidewalk abutting a vacant restaurant owned by the defendant. The plaintiff thereafter commenced this action to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion.

“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 ice from a public sidewalk” ( Smalley v. Bemben, 12 N.Y.3d 751, 752, 880 N.Y.S.2d 878, 908 N.E.2d 868 [emphasis omitted], quoting Roark v. Hunting, 24 N.Y.2d 470, 475, 301 N.Y.S.2d 59, 248 N.E.2d 896;Marx v. Great Neck Park Dist., 92 A.D.3d 925, 926, 939 N.Y.S.2d 518;Hilpert v. Village of Tarrytown, 81 A.D.3d 781, 781, 916 N.Y.S.2d 817). While Administrative Code of the City of New York § 7–210 imposes tort liability on certain parties for, inter alia, negligent failure to remove snow and ice, that statute did not go into effect until September 14, 2003, and, thus, is not applicable here ( see Ferguson v. Shu Ham Lam, 74 A.D.3d 870, 903 N.Y.S.2d 101;Robles v. City of New York, 56 A.D.3d 647, 868 N.Y.S.2d 114). “In the absence of a statute or ordinance imposing liability, the owner of property abutting a public sidewalk will be held liable only where it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally occurring conditions more hazardous” ( Hilpert v. Village of Tarrytown, 81 A.D.3d at 782, 916 N.Y.S.2d 817;see Schwint v. Bank St. Commons, LLC, 74 A.D.3d 1312, 904 N.Y.S.2d 220;Braun v. Weissman, 68 A.D.3d 797, 890 N.Y.S.2d 615).

Here, the defendant established his prima facie entitlement to judgment as a matter of law by demonstrating, through the plaintiff's deposition testimony that when she fell there were several inches of snow on the ground and that the sidewalk abutting the restaurant had not been shoveled at all, that he did not engage in snow removal activities which created or exacerbated any dangerous condition on the sidewalk ( see generally Marx v. Great Neck Park Dist., 92 A.D.3d at 925, 939 N.Y.S.2d 518;Hilpert v. Village of Tarrytown, 81 A.D.3d at 781, 916 N.Y.S.2d 817). Contrary to the plaintiff's contention, the Supreme Court properly considered the deposition transcripts submitted in support of the motion. The unsigned but certified deposition of the defendant was admissible under CPLR 3116(a), since the transcript was submitted by the party deponent himself and, therefore, was adopted as accurate by the deponent ( see Rodriguez v. Ryder Truck, Inc., 91 A.D.3d 935, 936, 937 N.Y.S.2d 602;Ashif v. Won Ok Lee, 57 A.D.3d 700, 868 N.Y.S.2d 906). Additionally, in reply to the plaintiff's opposition, the defendant submitted evidence which showed that the plaintiff's certified deposition transcript had been submitted to her for review, but that she failed to sign and return it within 60 days. Thus, the plaintiff's deposition transcript was properly used as fully as though it were signed ( seeCPLR 3116[a]; Franzese v. Tanger...