Valentine v. City of New York

• Decision Date: 12 May 1982
• Citation: 449 N.Y.S.2d 991,86 A.D.2d 381
• Parties: Rita VALENTINE, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant, and Filomena Castorina, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 991

449 N.Y.S.2d 991

86 A.D.2d 381

Rita VALENTINE, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant and Filomena Castorina, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

May 12, 1982.

George Ian Brandon, New York City, of counsel (Allen G. Schwartz, Corp. Counsel, New York City, attorney), for defendant-appellant.

Martin S. Rothman, New York City, of counsel (Joseph Irom and Jeffrey E. Rothman, New York City, with him on the brief; Paul Bank, P. C. and Seligson, Rothman & Rothman, New York City, attorneys), for plaintiff-respondent.

Alvin P. Bluthman, New York City, of counsel (Nathan Cyperstein, New York City, attorney), for defendant-respondent.

Before SULLIVAN, J. P., and ROSS, CARRO, LUPIANO and MILONAS, JJ.

SULLIVAN, Justice Presiding.

The City of New York has been found negligent for failing to remove from a City sidewalk an accumulation of ice and snow which constituted a dangerous condition and caused plaintiff to fall and sustain injuries. ¹ Because, as a matter of law, an insufficient time had elapsed between the end of the snowfall and the accident to enable the City, in the exercise of reasonable care, to remove the snow and ice from the sidewalk, the judgment should be reversed and the complaint dismissed.

Evidence at the trial established that sometime on December 16, 1973 a severe ice storm, described as the second worst in the preceding 50 years, and consisting of a combination of snow, sleet and freezing rain, struck the metropolitan area. The storm continued until midnight of December 17th, and deposited between two and three inches of precipitation on the ground. The City, in its aftermath, looked "like a skating pond." The three inch "icy mass" which covered the ground could not be removed by shovel but had to be chopped away with ice picks. In the approximately thirty and one-quarter hours between the end of the storm and plaintiff's fall, the temperature did not rise above freezing, and dropped to as low as 17? F.

The accident occurred sometime around 6:15 a. m., on December 19th, when plaintiff, then 45 years of age, on her way to work from her home just several houses away, slipped and fell on the sidewalk in front of 4123 Murdock Avenue, and suffered injuries to her left ankle. Murdock Avenue is a residential street in the northeast Bronx, abutted by one and two-family private homes.

The City's snow removal operations, which extend over 6,401 miles of streets and 11,420 miles of sidewalk, broken down into 58 snow removal districts, began on December 16th and continued at least until December 21st. The snow removal district in which Murdock Avenue is situated consists of 120 miles of streets and 240 miles of sidewalks, abutted by as many as 19,483 dwelling units. In the three days from December 17th to December 19th, the City assigned 35, 25, and 33 men, respectively, to snow removal duty in this district alone. Working overtime they used as many as 32 pieces of snow removal equipment in one day, including plows and front-end loaders, and spread, in the three day period, 1,421 tons of salt.

Given the freezing temperature, the amount of snow and ice that had to be removed, the problems inherent in such a project, and the brevity of time between the end of the storm and the accident, it is not surprising that at the time of the accident the City had not cleared the ice and snow which had fallen on the sidewalk in front of 4123 Murdock Avenue, a private dwelling on a residential street, not in immediate proximity to any intersection or crosswalk. To charge the City with the responsibility to clear this sidewalk seems to us, in the circumstances presented, to be not only unreasonable but also totally unrealistic.

The rule is well established that a municipality is not liable in negligence for injuries sustained by a pedestrian who slips and falls on an icy sidewalk unless a reasonable time has elapsed between the end of the storm giving rise to the icy condition and the occurrence of the accident. (See Mandel v. City of New York, 44 N.Y.2d 1004, 408 N.Y.S.2d 342, 380 N.E.2d 173; Hamill v. City of New York, 78 A.D.2d 792, 433 N.Y.S.2d 20, aff'd 52 N.Y.2d 1045, 438 N.Y.S.2d 519, 420 N.E.2d 400; Schlausky v. City of New York, 41 A.D.2d 156, 341 N.Y.S.2d 548.) A reasonable time is that period within which the municipality should have taken notice of the icy condition and, in the exercise of reasonable care, remedied it by clearing the sidewalk or otherwise eliminating the danger. (See De Boulet v. City of New York, 192 App.Div. 359, 364, 182 N.Y.S. 697.) This standard of municipal responsibility was enunciated by the Court of Appeals at least as early as 1890 when, in Harrington v. City of Buffalo, 121 N.Y. 147, 24 N.E. 186, it stated [Negligence] may be inferred from the omission by the corporation to cause dangerous obstructions to be removed from the streets after sufficient time has elapsed to afford a presumption of knowledge of their existence and an opportunity to effect their removal. (Id. at 151, 24 N.E. 186.)

The Court of Appeals reaffirmed this principle as recently as 1978 in Mandel v. City of New York, supra, 44 N.Y.2d at 1005, 408 N.Y.S.2d 342, 380 N.E.2d 173), wherein it held that the plaintiff had failed to prove that the City "was negligent in permitting the extraordinary snowfall to exist for an unreasonable period of time or that it had a reasonable opportunity to remedy the condition." Two recent decisions of this court also support this view. In Hamill v. City of New York, supra, 78 A.D.2d 792, 433 N.Y.S.2d 20, we stated that "had the burden of showing that the City permitted an unusual and dangerous accumulation of ice and snow to remain on the sidewalk where the accident occurred for an unreasonable period of time ...." In Schlausky v. City of New York, supra, 41 A.D.2d at 158, 341 N.Y.S.2d 548, we held that a municipality is liable for failure to clear snow and ice from its sidewalks only if "a dangerous condition was created and permitted to exist for such a period as would reasonably have afforded an opportunity to remedy the condition."

The reasonableness of the time within which a municipality must respond to its duty to clear the sidewalks is measured from the time that the storm comes to an end since, as one court has noted, "for ice conditions arises, at the most, only after the lapse of a reasonable time for taking protective measures and never while a storm is still in progress." (Valentine v. State of New York, 197 Misc. 972, 975, 95 N.Y.S.2d 827, aff'd 277 App.Div. 1069, 100 N.Y.S.2d 567; see, also, Kelly v. Manhattan Railway Co., 112 N.Y. 443, 452, 20 N.E. 383; Falina v. Hollis Diner, Inc., 281 App.Div. 711, 118 N.Y.S.2d 137; Bressler v. Rule Realty Co. Inc., 219 App.Div. 529, aff'd 248 N.Y. 619; McAuley v. United Cigar Stores Co. of America, Inc., 204 App.Div. 356, 198 N.Y.S. 154, aff'd 236 N.Y. 633, 142 N.E. 313.)

Applying these well settled principles to the facts at bar, and taking note of the severity of the storm and the City's efforts to cope with the resultant icy condition of the streets and sidewalks, we conclude that the interval of some thirty hours between the storm's cessation and plaintiff's fall was insufficient, as a matter of law, to charge the City with the duty of clearing the sidewalk where plaintiff fell. In addition to its severity the ice storm, the second worst to strike this area in fifty years, was followed by temperatures which never rose above 32? F. and reached a low of 17? F. on the morning of the accident. Courts have consistently taken into account the attendant difficulties which a municipality faces in removing snow and ice during freezing weather. (See, e.g., Cockfield v. City of New York, 283 App.Div. 806, 128 N.Y.S.2d 422; Rapoport v. City of New York, 281 App.Div. 33, 34, 117 N.Y.S.2d 408, aff'd 306 N.Y. 636, 116 N.E.2d 244; Yonki v. City of New York, 276 App.Div. 407, 408, 95 N.Y.S.2d 80, app. dis. 303 N.Y. 852, 104 N.E.2d 488; Goldstein v. Dattelbaum, 258 App.Div. 812, 15 N.Y.S.2d 1015; Eckert v. City of New York, 211 App.Div. 474, 475, 207 N.Y.S. 168; Foley v. City of New York, 95 App.Div. 374, 377, 88 N.Y.S. 690; Hawkins v. The Mayor, 54 App.Div. 258, 259, 66 N.Y.S. 623.)

In cases of exceptionally severe snow storms the courts, recognizing the difficulties involved, have consistently allowed the City a considerable length of time to clear the sidewalks of snow and ice. For example, the Second Department held that the City, following a 16.7 inch snowfall in 1948, was not liable for accidents occurring 80 hours after the storm (see Ganek v. City of New York, 286 App.Div. 1036, 145 N.Y.S.2d 343); 84 hours after the storm (seeThompson v. Rose, 283 App.Div. 735, 127 N.Y.S.2d 605); and 120 hours after the storm (see Weisfeld v. City of New York, 282 App.Div. 739, 122 N.Y.S.2d 426). Similarly, this court dismissed actions against the City where the accidents took place 60 hours (Yonki v. City of New York, supra, 276 App.Div. at 411, 95 N.Y.S.2d 80), and 90 hours (see Rapoport v. City of New York, supra, 281 App.Div. 33, 117 N.Y.S.2d 408), after a recordbreaking 25.8 inch snowfall in 1947. The Court of Appeals earlier had adopted the same approach in affirming the orders of this court which had reversed judgments against the City where the accidents occurred five days (see Kirsch v. City of New York, 289 N.Y. 684, 45 N.E.2d 334, aff'g 256 App.Div. 903, 9 N.Y.S.2d 798) and eight days (seeReutlinger v. City of New York, 281 N.Y. 592, 22 N.E.2d 165, aff'g 255 App.Div. 848, 7 N.Y.S.2d 1021), after an 18 inch snowfall in 1935. In Eckert v. City of New York, supra, 211 App.Div. 474, 207 N.Y.S. 168, this court refused to hold the City liable for an accident which took place 61 hours after a 17.5 inch snowfall in 1920.

Although often producing a much smaller amount of accumulation than the snow storms involved in the cases cited, supra, a severe ice...