Gilbert v. City of Rye
| Decision Date | 07 August 2019 |
| Docket Number | Index No. 68391/13,2016–08163 |
| Citation | 175 A.D.3d 470,106 N.Y.S.3d 134 |
| Parties | Katherine GILBERT, et al., appellants, v. CITY OF RYE, respondent, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
175 A.D.3d 470
106 N.Y.S.3d 134
Katherine GILBERT, et al., appellants,
v.
CITY OF RYE, respondent, et al., defendants.
2016–08163
Index No. 68391/13
Supreme Court, Appellate Division, Second Department, New York.
Argued-October 15, 2018
August 7, 2019
Greenspoon Marder, P.A. P.C., New York, N.Y. (Michelle Fox, Keelin Kavanagh, and Wendy Michael of counsel), for appellants.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, N.Y. (Janine A. Mastellone and John B. Martin of counsel), for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Orazio R. Bellantoni, J.), dated June 24, 2016. The order granted the motion of the defendant City of Rye for summary judgment dismissing the amended complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
On February 14, 2013, the plaintiff Katherine Gilbert (hereinafter the injured plaintiff) allegedly slipped and fell on a patch of ice located on a public sidewalk that was adjacent to property owned by the defendant Presbyterian Church of the Town of Rye (hereinafter the Church). The injured plaintiff, and her husband suing derivatively, commenced this action against, among others, the City of Rye to recover damages for personal injuries.
In their amended complaint, the plaintiffs alleged that a snowstorm had occurred in the days leading up to the accident which led to an accumulation of snow. The plaintiffs alleged that the City plowed snow and ice from the road in front of the sidewalk, and that it negligently pushed the snow and ice from the road into a large pile along the sidewalk, which made it "highly likely that the snow would melt and then re-freeze as Black Ice on the sidewalk." The plaintiffs alleged that the City's negligence in plowing the road created a dangerous condition on the sidewalk which caused the injured plaintiff to slip and fall.
The City moved for summary judgment dismissing the amended complaint insofar as asserted against it. The City argued that it had no duty to maintain the sidewalk, and that it did not create or exacerbate the allegedly dangerous condition which caused the accident. In the order appealed from, the Supreme Court granted the City's motion for summary judgment dismissing the amended complaint insofar as asserted against it. The plaintiffs appeal.
"At common law it was a general rule that only the municipality might be held liable for the negligent failure to remove snow, ice and obstructions from a public sidewalk or to have defects and dangerous conditions in the sidewalk repaired, since the municipality is in control of the sidewalk and not the abutting owner" ( Rooney v. City of Long Beach, 42 A.D.2d 34, 37–38, 345 N.Y.S.2d 66 ; see Smalley v. Bemben, 12 N.Y.3d 751, 752, 880 N.Y.S.2d 878, 908 N.E.2d 868 ). "There are, however, circumstances under which this general rule is inapplicable and the abutting landowner will be held liable" ( Hausser v. Giunta, 88 N.Y.2d 449, 453, 646 N.Y.S.2d 490, 669 N.E.2d 470 ). As relevant
here, "[l]iability to...
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