PARK DISTRICT NOT LIABLE FOR PEDESTRIAN'S SLIP-AND-FALL INJURY ON ICE ON SIDEWALK ICE NEXT TO LAND OWNED BY DISTRICT DESPITE LAW REQUIRING LANDOWNER TO REMOVE SNOW AND ICE

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

Case: Joyanna Marx v. Great Neck Park District

Date: Feb. 28, 2012

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

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In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Lally, J.), dated October 7, 2010, as granted the motion of the defendant Great Neck Park District for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly slipped and fell on a patch of ice while walking on a sidewalk abutting certain land owned by the defendant Great Neck Park District (hereinafter the Park District).

Contrary to the plaintiff's contentions, the Supreme Court properly granted the Park District's motion for summary judgment dismissing the complaint insofar as asserted against it. "Unless a statute or ordinance clearly imposes liability upon an abutting landowner, only a municipality may be held liable for the negligent failure to remove snow and ice from a public sidewalk" (Hilpert v. Village of Tarrytown, 81 A.D.3d 781, 781, 916 N.Y.S.2d 817; see Smalley v. Bemben, 12 N.Y.3d 751, 880 N.Y.S.2d 878, 908 N.E.2d 868; Schwint v. Bank St. Commons, LLC, 74 A.D.3d 1312, 904 N.Y.S.2d 220; Ferguson v. Shu Ham Lam, 74 A.D.3d 870, 903 N.Y.S.2d 101; Braun v. Weissman, 68 A.D.3d 797, 890 N.Y.S.2d 615). Although the Code of the Village of Great Neck Plaza requires an abutting landowner to remove snow and ice from abutting public sidewalks, it does not specifically impose tort liability for a breach of that duty (see Hilpert v. Village of Tarrytown, 81 A.D.3d at 781, 916 N.Y.S.2d 817).

"In the absence of a statute or ordinance imposing liability, the owner of property abutting a public sidewalk will be held liable only where it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally occurring conditions more hazardous" (id. at 782, 916 N.Y.S.2d 817; see Schwint v. Bank St. Commons, LLC, 74 A.D.3d 1312, 904 N.Y.S.2d 220; Ferguson v. Shu Ham Lam, 74 A.D.3d 870, 903 N.Y.S.2d 101; Braun v. Weissman, 68 A.D.3d 797, 890 N.Y.S.2d 615). Here, while the Park District acknowledged that it undertook certain snow removal efforts on the sidewalk, it established, prima facie, that its snow removal efforts did not create or exacerbate any dangerous condition on the sidewalk (see Hilpert v. Village of Tarrytown, 81 A.D.3d at 782, 916 N.Y.S.2d 817; Krichevskaya v. City of New York, 30 A.D.3d 471, 471, 817 N.Y.S.2d 103; Friedman v. Stauber, 18 A.D.3d 606, 607, 795 N.Y.S.2d 612; see also Urquhart v. Town of Oyster Bay, 85 A.D.3d 899, 900, 925 N.Y.S.2d 609). In opposition, the plaintiff merely speculated that the icy condition was created by snow removal activities that were allegedly undertaken by the Park District five days before the incident occurred. Under the circumstances, speculation regarding the actions taken by the Park District and the results of such actions was insufficient to raise a triable issue of fact to defeat the Park District's motion (see Krichevskaya v. City of New York, 30 A.D.3d at 471, 817 N.Y.S.2d 103; Scher v. Kiryas Joel Hous. Dev. Fund Co., 17 A.D.3d 660, 660, 794 N.Y.S.2d 112; Trabolse v. Rizzo, 275 A.D.2d 320, 320, 712 N.Y.S.2d 401).

The plaintiff's remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the Park District's motion for summary judgment dismissing the complaint insofar as asserted against it.

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