Pacelli v. Pinsley

• Decision Date: 09 December 1999
• Citation: 699 N.Y.S.2d 530,267 AD2d 706
• Parties: 1999 N.Y. Slip Op. 10,572 Elizabeth PACELLI et al., Respondents, v. Carol PINSLEY et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 530

699 N.Y.S.2d 530

1999 N.Y. Slip Op. 10,572

Elizabeth PACELLI et al., Respondents, v. Carol PINSLEY et al., Appellants.

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

Dec. 9, 1999.

Edward C. Fassett (Carolyn B. George of counsel), Albany, for appellants.

Edward P. Ryan (John T. Casey Jr. of counsel), Albany, for respondents.

Before: CARDONA, P.J., PETERS, SPAIN, CARPINELLO and GRAFFEO, JJ.

SPAIN, J.

Appeal from an order of the Supreme Court (Keniry, J.), entered April 6, 1999 in Saratoga County, which denied defendants' motion for summary judgment dismissing the complaint.

Around 10:00 A.M. on February 3, 1997, plaintiff Elizabeth Pacelli (hereinafter plaintiff) left her office building in the City of Saratoga Springs, Saratoga County, to walk to a nearby restaurant to buy coffee and lunch. It had been snowing since 6:30 A.M. and there was about one inch of new snow on the ground at the time of the accident. No precipitation had been recorded during the 36 to 44 hours prior to this snowfall. Plaintiff was walking on the sidewalk in front of defendants' professional office building when she slipped and fell, fracturing her right leg, a condition which caused her to miss work for eight months. Defendants were out of town at the time of the accident but had maintenance contracts for snow and ice removal on their sidewalks and parking lot.

Plaintiff and her husband, derivatively, commenced this negligence action against defendants. At her deposition, plaintiff testified that there was a hard, crusty, thick layer of ice underneath the new snow covering the sidewalk where she fell. Two of plaintiff's co-workers, who arrived on the scene shortly after she fell, testified that there was an accumulation of ice beneath the fresh snow. The emergency medical technician who came to the scene of the accident confirmed in a sworn affidavit that the sidewalk was extremely slippery due to ice buildup underneath the snow, that it was obvious to him that the ice had "been there for quite awhile and made the sidewalk extremely hazardous", and that "it was obvious that nothing had been done to maintain the sidewalk". Plaintiffs' consulting meteorologist opined that the ice had been created by weather conditions and precipitation occurring in the days prior to the accident, rather than by the weather conditions present on the day of the accident, and their consulting engineer testified that water tended to accumulate on the sidewalk where plaintiff slipped. By contrast, the contractor responsible for snow removal from defendants' sidewalks testified that he shoveled the walk around 7:00 A.M. on the day of the accident and that there was no ice present.

Following completion of discovery, defendants unsuccessfully moved for summary judgment dismissing the complaint, arguing that since it was snowing when plaintiff fell they are entitled to a reasonable time after the cessation of the storm to clear the sidewalk of snow...