Gerber v. City of NY

• Decision Date: 06 February 2001
• Citation: 280 A.D.2d 289,719 N.Y.S.2d 650
• Parties: (A.D. 1 Dept. 2001) Diana Gerber, Plaintiff-Respondent, v. The City of New York, et al., Defendants, and East 72 Tenants Corp., Defendant-Appellant. 2093 : FIRST JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 650

719 N.Y.S.2d 650 (A.D. 1 Dept. 2001)

Diana Gerber, Plaintiff-Respondent, v. The City of New York, et al., Defendants and East 72 Tenants Corp., Defendant-Appellant.

2093

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

February 6, 2001.

Raymond A. Bragar, for Plaintiff-Respondent.

Carol R. Finocchio & Lawrence B. Goodman, for Defendant-Appellant.

Rosenberger, J.P., Nardelli, Ellerin, Lerner, Friedman, JJ.

Order, Supreme Court, New York County (Martin Shulman, J.), entered February 19, 1999, which, inter alia, denied the cross-motion of defendant East 72 Tenants Corporation for summary judgment dismissing the complaint and all cross-claims against it, unanimously reversed, on the law, without costs, the motion granted, and the complaint and all cross-claims dismissed as against defendant-appellant. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint as against it.

During a cold afternoon on February 14, 1994, two days after a severe snow storm that lasted four days, plaintiff Diana Gerber, allegedly, slipped and fell on "black ice" on the sidewalk outside a storefront business located in the building at 897 Madison Avenue in the City of New York. Defendant East 72 Tenants Corporation ("East 72"), the owner of the building, leased the premises in which the store was located to defendant Andrelux Group, pursuant to a lease agreement entered into on January 1, 1987.

Gerber commenced this negligence action against Andrelux, City, and East 72. Since Andrelux failed to answer the complaint, the motion court issued a default judgment against it. The motion court granted the City's cross-motion for summary judgment on the ground that the City had not had reasonable time to clear the sidewalk of any "black ice" within days of such inclement weather, and that the City had not had any notice of the alleged defective condition. East 72 cross moved for like relief, which the motion court denied because it found that an issue of fact existed as to whether East 72 had a "concomitant obligation" with Andrelux to remedy any defect related to snow or ice on the storefront sidewalk based on a right of entry provision in the lease and the testimony of an employee of East 72. Summary judgment should have been granted.

As a matter of law, an owner is not liable in tort for injuries sustained by a pedestrian who slips and falls on snow and ice which naturally accumulated on the sidewalk in front of its premises, because the landlord owes no duty to the public to remove naturally accumulated snow and ice (see, Stewart v. Haleviym, 186 A.D.2d 731) [citations omitted]). Nevertheless, an out-of-possession landlord may incur liability if it attempted to remove snow and ice and made the condition more hazardous (Id.).

An examination of the lease in this case establishes that the right of East 72 to reenter to make repairs or improvements was...