SPLAINE v. Carve Unique Sandwiches, Defendant. (2025)

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered September 27, 2024, which, to the extent appealed from, denied the motion of defendant New Gold Equities Corp., individually and as successor-in-interest to IG Greenpoint Corp., for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Supreme Court properly denied New Gold's motion for summary judgment as issues of fact remain as to the applicability of the storm-in-progress doctrine.  Defendants’ expert opined that the snowstorm ended less than four hours before plaintiff's accident, but plaintiffs’ expert opined that the snowstorm in fact ended more than four hours before the accident, with only trace amounts of precipitation falling for some time afterward (see Gill v. BK Bryant Ave. HDFC., Inc., 220 A.D.3d 528, 528, 196 N.Y.S.3d 449 [1st Dept. 2023];  see also Tracy v. 29–33 Convent Ave. Hous. Dev. Fund Corp., 179 A.D.3d 612, 613, 117 N.Y.S.3d 223 [1st Dept. 2020];  Haraburda v. City of New York, 168 A.D.3d 485, 486, 89 N.Y.S.3d 893 [1st Dept. 2019]).  Issues of fact also remain as to whether defendant Carve Unique Sandwiches, New Gold's tenant, negligently cleared snow and ice from the sidewalk thereby causing or creating a dangerous condition (see Gill, 220 A.D.3d at 528, 196 N.Y.S.3d 449;  Pipero v. New York City Tr. Auth., 69 A.D.3d 493, 493, 894 N.Y.S.2d 39 [1st Dept. 2010]).  Although New Gold can permissibly delegate the work of maintaining the sidewalk to Carve, the duty itself is nondelegable (see Xiang Fu He v. Troon Mgt., Inc., 34 N.Y.3d 167, 174, 114 N.Y.S.3d 14, 137 N.E.3d 469 [2019];  see Administrative Code of City of N.Y. § 7–210), and thus, New Gold, as the property owner, “may be held liable as [a] joint tortfeasor[ ] for failure to fulfill [its] respective maintenance obligations” (Smoot v. Rite Aid, 185 A.D.3d 411, 413, 127 N.Y.S.3d 80 [1st Dept. 2020], lv dismissed 36 N.Y.3d 927, 135 N.Y.S.3d 663, 160 N.E.3d 321 [2020]).

Finally, New Gold did not establish its lack of actual or constructive notice because it submitted no evidence as to when the sidewalk was last inspected or cleaned of snow and ice or evidence of the condition of the sidewalk prior to plaintiff's accident (see Ndiaye v. NEP W. 119th St. LP, 124 A.D.3d 427, 428, 1 N.Y.S.3d 50 [1st Dept. 2015]).