John v. City of N.Y.

• Decision Date: 19 October 2010
• Citation: John v. City of N.Y., 909 N.Y.S.2d 142, 77 A.D.3d 792 (N.Y. App. Div. 2010)
• Parties: Anita JOHN, respondent, v. CITY OF NEW YORK, defendant, Sandy M. Eisenberger, et al., appellants.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 142

77 A.D.3d 792

Anita JOHN, respondent,

v. CITY OF NEW YORK, defendant,Sandy M. Eisenberger, et al., appellants.

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

Oct. 19, 2010.

Mintzer, Sarowitz, Zeris, Ledva & Meyers, Hicksville, N.Y. (Leslie McHugh of counsel), for appellants.

Robert A. Litman (Arnold E. DiJoseph, P.C., New York, N.Y., of counsel), for respondent.

MARK C. DILLON, J.P., ANITA R. FLORIO, RUTH C. BALKIN, and SHERI S. ROMAN, JJ.

In an action to recover damages for personal injuries, the defendants Sandy M. Eisenberger and Eta Eisenberger appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated September 30, 2009, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendants Sandy M. Eisenberger and Eta Eisenberger for summary judgment dismissing the complaint insofar as asserted against them is granted.

The plaintiff allegedly slipped and fell on ice on a public sidewalk abutting the appellants' two-family house. The defendant Sandy M. Eisenberger testified at his deposition that he performed snow removal work a day or two before the accident. Since the appellants' property constituted a two-family house, was owner-occupied, and was used exclusively for residential purposes, the appellants were exempt from liability imposed pursuant to section 7-210(b) of the Administrative Code of the City of New York for negligent failure to remove snow and ice from the sidewalk ( see Braun v. Weissman, 68 A.D.3d 797, 798, 890 N.Y.S.2d 615; Bi Chan Lin v. Po Ying Yam, 62 A.D.3d 740, 741, 879 N.Y.S.2d 172). Thus, the appellants may be held liable for the hazardous condition on the sidewalk only if they either undertook snow and ice removal efforts that made the naturally-occurringcondition more hazardous ( see Braun v. Weissman, 68 A.D.3d at 797-798, 890 N.Y.S.2d 615; Bi Chan Lin v. Po Ying Yam, 62 A.D.3d 740, 879 N.Y.S.2d 172; Robles v. City of New York, 56 A.D.3d 647, 868 N.Y.S.2d 114; Bruzzo v. County of Nassau, 50 A.D.3d 720, 721, 854 N.Y.S.2d 774), or caused the defect to occur because of a special use ( see Campos v. Midway Cabinets, Inc., 51 A.D.3d 843, 858 N.Y.S.2d 742; Nunez v. City of New York, 41 A.D.3d 677, 838 N.Y.S.2d 619; Breger v. City of New York, 297 A.D.2d 770, 771, 747 N.Y.S.2d 577; Dos Santos v. Peixoto, 293 A.D.2d 566, 742 N.Y.S.2d 66). An abutting landowner is not liable for the removal of snow and ice in an incomplete manner ( see Roark v. Hunting, 24 N.Y.2d 470, 475, 301 N.Y.S.2d 59, 248 N.E.2d 896; Archer v. City of New York, 300 A.D.2d 518, 752 N.Y.S.2d 698; Yen Hsia v. City of New York, 295 A.D.2d 565, 744 N.Y.S.2d 887; Klein v. Chase Manhattan Bank, 290 A.D.2d 420, 736 N.Y.S.2d 606).

In support of their motion for summary judgment, the appellants demonstrated, as a matter of law, that they did not create or increase an existing hazard by removing the snow and ice that had accumulated on the sidewalk, or cause such condition through the special use of the sidewalk as a driveway ( see Katz v. City of New York, 18 A.D.3d 818, 819, 796 N.Y.S.2d 639; Breger v. City of New York, 297 A.D.2d at 771, 747 N.Y.S.2d 577). In opposition, the plaintiff failedto proffer any evidence sufficient to raise a triable issue of fact as to whether the appellants created or exacerbated the alleged icy condition on the sidewalk through their snow removal efforts ( see Cruz v. County of Nassau, 56 A.D.3d 513, 867 N.Y.S.2d 523; Klotz v. City of New York, 9 A.D.3d 392, 781 N.Y.S.2d 357; Wilson v. Prazza, 306 A.D.2d...