CRUZ v. COUNTY OF NASSAU (2008)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Galasso, J.), entered June 18, 2007, as granted that branch of the motion of the defendants Gerard Tedeschi and Eileen Tedeschi which was for summary judgment dismissing the complaint insofar as asserted against them.

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

The plaintiff allegedly slipped and fell on ice on a public sidewalk abutting a premises owned by the defendants Gerard Tedeschi and Eileen Tedeschi (hereinafter the defendants).

 An owner of property abutting a public sidewalk may not be held liable for injuries to pedestrians arising out of the failure to remove snow and ice that naturally accumulates on the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so (see Roark v. Hunting, 24 N.Y.2d 470, 475, 301 N.Y.S.2d 59, 248 N.E.2d 896;  Bruzzo v. County of Nassau, 50 A.D.3d 720, 854 N.Y.S.2d 774;  Norcott v. Central Iron Metal Scraps, 214 A.D.2d 660, 661, 625 N.Y.S.2d 260).  In the instant case, the applicable ordinance, Village of Freeport Code § 180–35, did not specifically impose tort liability on abutting landowners for injuries sustained by a pedestrian as a result of their failure to comply with its provisions.

 In the absence of such a statute or ordinance, the owner can be held liable if he or she, or someone on his or her behalf, undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous (see Bruzzo v. County of Nassau, 50 A.D.3d 720, 854 N.Y.S.2d 774;  Crudo v. City of New York, 42 A.D.3d 479, 839 N.Y.S.2d 232;  Martinez v. City of New York, 20 A.D.3d 513, 799 N.Y.S.2d 252).  The failure to remove all of the snow and ice from the sidewalk does not constitute negligence (see Archer v. City of New York, 300 A.D.2d 518, 752 N.Y.S.2d 698;  Yen Hsia v. City of New York, 295 A.D.2d 565, 744 N.Y.S.2d 887;  Klein v. Chase Manhattan Bank, 290 A.D.2d 420, 736 N.Y.S.2d 606;  Palmer v. City of New York, 287 A.D.2d 553, 731 N.Y.S.2d 483).

 In response to the defendants' demonstration of their prima facie entitlement to judgment as a matter of law, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).  The plaintiff's contention that the snow removal efforts of the defendants' alleged agent made the condition more hazardous and contributed to the natural formation of ice when the temperature dropped was based upon conclusory and speculative assertions (see Krichevskaya v. City of New York, 30 A.D.3d 471, 817 N.Y.S.2d 103;  Yen Hsia v. City of New York, 295 A.D.2d 565, 744 N.Y.S.2d 887;  Penny v. Pembrook Mgt., 280 A.D.2d 590, 720 N.Y.S.2d 549;  Davis v. City of New York, 255 A.D.2d 356, 679 N.Y.S.2d 423;  cf. Ricca v. Ahmad, 40 A.D.3d 728, 835 N.Y.S.2d 663).