Suntken v. 226 West 75th St. Inc.

• Decision Date: 11 February 1999
• Citation: 685 N.Y.S.2d 217
• Parties: 1999 N.Y. Slip Op. 1344 Larry SUNTKEN, et al., Plaintiffs-Appellants, v. 226 WEST 75TH ST. INC., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 217

685 N.Y.S.2d 217

1999 N.Y. Slip Op. 1344

Larry SUNTKEN, et al., Plaintiffs-Appellants, v. 226 WEST 75TH ST. INC. et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

Feb. 11, 1999.

Marc H. Miner, for Plaintiffs-Appellants,

Anthony Xanthakis and Ronni B. Robbins, for Defendants-Respondents.

ROSENBERGER, J.P., ELLERIN, NARDELLI, WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about February 28, 1997, which, in a personal injury action, granted the motion of defendant 226 West 75th St. Inc. and the cross motion of defendants Citarella Fish Company and Joseph Guerrera d/b/a Citarella Fish Company for summary judgment, unanimously modified, on the law, to reinstate the complaint against defendants Citarella and Guerrera, and otherwise affirmed, without costs or disbursements.

An owner of property is under no duty to pedestrians to remove ice and snow that naturally accumulates upon the sidewalk in front of its premises. To incur liability, the owner's snow removal attempt must have made the sidewalk more dangerous (Jiminez v. Cummings, 226 A.D.2d 112, 640 N.Y.S.2d 61). Even during an ongoing storm, while ordinarily there would be no duty to remove snow, if one takes steps to remove snow and ice, liability may result if those efforts create a hazardous condition or exacerbate a natural hazard created by the storm (Marrone v. Verona, 237 A.D.2d 805, 654 N.Y.S.2d 481).

Upon this motion for summary judgment, defendant 226 West 75th St. Inc. clearly demonstrated that while it was the owner of the premises abutting the sidewalk, it was an out-of-possession landlord. The lease agreement between tenant Citarella and landlord 226 placed the responsibility for removing snow upon Citarella and there was no evidence showing that 226 exercised any semblance of control over the premises. In addition, 226 submitted an affidavit from its managing agent which showed that none of its employees had undertaken to clean the sidewalk. In fact, defendant Citarella's employee unequivocally stated that when it snowed, managers of the store would shovel a path in front of the store. Since plaintiffs' submissions failed to demonstrate that 226 had notice of the dangerous condition or had consented to be responsible for maintenance or repair, summary judgment dismissing the complaint as to it was proper (Manning v. New York Tel. Co., 157 A.D.2d 264, 555 N.Y.S.2d 720).

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