SUNTKEN v. 226 WEST ST INC (1999)

Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about February 28, 1997, which, in a personal injury action, granted the motion of defendant 226 West 75th St. Inc. and the cross motion of defendants Citarella Fish Company and Joseph Guerrera d/b/a Citarella Fish Company for summary judgment, unanimously modified, on the law, to reinstate the complaint against defendants Citarella and Guerrera, and otherwise affirmed, without costs or disbursements.

 An owner of property is under no duty to pedestrians to remove ice and snow that naturally accumulates upon the sidewalk in front of its premises.   To incur liability, the owner's snow removal attempt must have made the sidewalk more dangerous (Jiminez v. Cummings, 226 A.D.2d 112, 640 N.Y.S.2d 61).   Even during an ongoing storm, while ordinarily there would be no duty to remove snow, if one takes steps to remove snow and ice, liability may result if those efforts create a hazardous condition or exacerbate a natural hazard created by the storm (Marrone v. Verona, 237 A.D.2d 805, 654 N.Y.S.2d 481).

 Upon this motion for summary judgment, defendant 226 West 75th St. Inc. clearly demonstrated that while it was the owner of the premises abutting the sidewalk, it was an out-of-possession landlord.   The lease agreement between tenant Citarella and landlord 226 placed the responsibility for removing snow upon Citarella and there was no evidence showing that 226 exercised any semblance of control over the premises.   In addition, 226 submitted an affidavit from its managing agent which showed that none of its employees had undertaken to clean the sidewalk.   In fact, defendant Citarella's employee unequivocally stated that when it snowed, managers of the store would shovel a path in front of the store.   Since plaintiffs' submissions failed to demonstrate that 226 had notice of the dangerous condition or had consented to be responsible for maintenance or repair, summary judgment dismissing the complaint as to it was proper (Manning v. New York Tel. Co., 157 A.D.2d 264, 555 N.Y.S.2d 720).

 However, there were issues raised as to what effect the snow removal by Citarella had on the condition of the sidewalk.   Thus, there was evidence that plaintiff fell while walking in a two to three foot snow-covered path in front of Citarella's store.   There was testimony by Citarella's employee that when it snowed it was routine practice for managers of Citarella to shovel a path for the benefit of their customers.   In addition, on either side of the path there were accumulations of old snow of up to three inches.   Plaintiff stated that the snow was clearly not new but old snow from another storm and that the accumulations were not pristine.   In light of this, there are triable issues as to whether the snow removal measures undertaken by Citarella created or increased the dangerous conditions.

MEMORANDUM DECISION.