DEFENSE FAILS TO SUPPORT ITS SUMMARY JUDGMENT MOTION IN SNOW AND ICE SLIP-AND-FALL CASE

Case: Gloria Hevia v. Smithtown Auto Body of Long Island, Ltd.

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

Date: January 24, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident attorney)

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DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated October 25, 2010, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly slipped and fell in the early morning hours as a result of an icy and snowy condition on a sidewalk abutting premises leased by the defendant. Snow had last fallen two or three days prior to the date of the incident.

Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions [on] public sidewalks is placed on the municipality -- (Hausser v. Giunta, 88 N.Y.2d 449, 452-453; see Ferguson v. Shu Ham Lam, 74 AD3d 870). An abutting owner or lessee will be liable to a pedestrian injured by a dangerous condition on a public sidewalk only when the owner or lessee either created the condition or caused the condition to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner or the lessee and expressly makes the owner or the lessee liable for injuries caused by a breach of that duty (see Hausser v. Giunta, 88 N.Y.2d at 452-453; Cangemi v. Burgan, 81 AD3d 583; Romano v. Leger, 72 AD3d 1059; Falchook v. J & M Kingsley, Ltd., 67 AD3d 632; Sachs v. County of Nassau, 60 AD3d 1032).

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RELATED POSTS:

BUILDING OWNER DENIED SUMMARY JUDGMENT IN ICY SIDEWALK SLIP-AND-FALL ACCIDENT; DID OWNER KNOW OF WATER RUNOFF FROM ROOF? (Posted by Brooklyn Queens accident attorney Gary E. Rosenberg on Oct 30, 2011)

SLIP-AND-FALL ACCIDENT IN PARKING LOT: SUMMARY JUDGMENT TO SOME DEFENDANTS(Posted by Queens accident attorney Gary E. Rosenberg on Jan 17, 2012)

SUMMARY JUDGMENT DENIED TO DEFENDANT PROPERTY OWNER IN SLIP AND FALL PARKING LOT ACCIDENT (Posted by Brooklyn Queens accident attorney Gary E. Rosenberg on Oct 28, 2011)

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Here, Code of Town of Smithtown Sec. 245-5 requires abutting occupants to remove snow and ice from sidewalks and imposes tort liability upon them for injuries caused by their breach of that duty. The defendant failed to establish, prima facie, that it complied with this provision (see generally Zuckerman v. City of New York, 49 N.Y.2d 557). Additionally, it failed to establish, prima facie, that it did not have actual or constructive notice of the alleged hazardous condition which caused the plaintiff to fall (see Plotits v. Houaphing D. Chaou, LLC, 81 AD3d 620; Baines v. G & D Ventures, Inc., 64 AD3d 528).

Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.

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