COLON v. Rita Marsicano, Defendant–respondent. (2026)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered April 22, 2025, which granted defendant Rita Marsicano's motion for summary judgment dismissing the complaint as against her, unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated.

In this slip and fall action, defendant-respondent (defendant) established that she owned a “one–, two– or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes” and was thus exempt from statutory liability pursuant to Administrative Code of the City of New York § 7–210(b).

However, defendant was also required to establish freedom from common-law liability by demonstrating that she did not create or exacerbate the alleged icy condition (see Gilmartin v. City of New York, 81 A.D.3d 411, 412, 915 N.Y.S.2d 556 [1st Dept 2011] ).  Supreme Court should not have granted defendant's motion for summary judgment because defendant failed to establish prima facie that the condition was not created or exacerbated by her special use of the sidewalk as a driveway (see Prete v. JJ Hoyt LLC, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2026 N.Y. Slip Op. 00458, 2026 WL 171961 [1st Dept 2026] ).  Defendant's testimony that she did not recall if anyone used her driveway during the year of the accident fails to refute plaintiff's argument that the existence of the driveway created or exacerbated the condition (cf.  Trent–Clark v. City of New York, 114 A.D.3d 558, 559, 980 N.Y.S.2d 458 [1st Dept 2014] ).