Somekh v. Valley Nat'l Bank

• Decision Date: 07 June 2017
• Parties: Nissim SOMEKH, appellant, v. VALLEY NATIONAL BANK, et al., respondents (and a third-party action).
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 783
57 N.Y.S.3d 487

Nissim SOMEKH, appellant,
v.
VALLEY NATIONAL BANK, et al., respondents

(and a third-party action).

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

June 7, 2017.

57 N.Y.S.3d 489

Shaevitz, Shaevitz & Kotzamanis, Jamaica, NY (Stuart Sears of counsel), for appellant.

Perez & Varvaro, Uniondale, NY (Alex M. Temple of counsel), for respondents Valley National Bank, Valley National Bancorp., and Ness & Mazal V'Bracha, Inc.

McCarthy & Associates, Melville, NY (Edwin Ossa of counsel), for respondent ADM Landscape Corp.

RANDALL T. ENG, P.J., REINALDO E. RIVERA, RUTH C. BALKIN, and BETSY BARROS, JJ.

In a consolidated action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Livote, J.), entered October 14, 2015, as granted those branches of the separate motions of the defendants Valley National Bank, Valley National Bancorp., and Ness & Mazal V'Bracha, Inc., and the defendant ADM Landscape Corp. which were for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The plaintiff allegedly slipped and fell on ice outside the entrance of a bank operated by the defendants Valley National Bank and Valley National Bancorp. on premises owned by the defendant Ness & Mazal V'Bracha, Inc. (hereinafter collectively the bank). The plaintiff alleged that his fall was caused by snow or ice on the bank's roof or awning melting and refreezing on the ground outside its front doors.

The bank had retained the defendant ADM Landscape Corp. (hereinafter ADM) to provide snow and ice removal services. The contract required ADM to plow and distribute ice melt within two hours whenever there was an accumulation of two or more inches of snow, whenever there was any accumulation of ice, or when service was requested. It was undisputed that between two and four inches of snow had fallen the previous day, that ADM had provided services pursuant to its contract with the bank, and that no additional precipitation had fallen between the time ADM provided service and the time of the plaintiff's fall.

The plaintiff commenced separate actions against the bank and ADM, which were later consolidated. The bank and ADM separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted those branches of both motions. The plaintiff appeals.

"A real property owner, or a party in possession or control of real property, will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive notice of it" ( Rudloff v. Woodland Pond Condominium Assn., 109 A.D.3d 810, 812, 971 N.Y.S.2d 170 ; see Hall v. Staples the Off. Superstore E., Inc., 135 A.D.3d 706, 706–707, 22 N.Y.S.3d 568 ; Kulchinsky v. Consumers Warehouse Ctr., Inc., 134 A.D.3d 1068, 1069, 21 N.Y.S.3d 721 ). To establish its entitlement to summary judgment, a property owner or party in possession must establish, prima facie, that "it neither created nor had actual or constructive notice of the dangerous condition that allegedly caused the plaintiff to fall" ( Scott v. Avalonbay Communities, Inc., 125 A.D.3d 839, 840, 4 N.Y.S.3d 243 ; see Hall v. Staples the Off. Superstore E.,

57 N.Y.S.3d 490

Inc., 135 A.D.3d at 706, 22 N.Y.S.3d 568; Kulchinsky v. Consumers Warehouse Ctr., Inc., 134 A.D.3d at 1069, 21 N.Y.S.3d 721; Koelling v. Central Gen. Community Servs., Inc., 132 A.D.3d 734, 736, 18 N.Y.S.3d 95 ).

Here, the bank established its prima facie...