OLIVIERI v. GM REALTY COMPANY LLC (2007)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated November 21, 2005, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is denied.

 Concetta Olivieri (hereinafter the plaintiff) was injured when, as she exited a building owned by the defendant, she slipped and fell on ice on a walkway leading from the building.   A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice thereof (see Nielsen v. Metro-North Commuter R.R. Co., 30 A.D.3d 497, 817 N.Y.S.2d 110;  Fahey v. Serota, 23 A.D.3d 335, 336, 806 N.Y.S.2d 70;  Zabbia v. Westwood LLC, 18 A.D.3d 542, 544, 795 N.Y.S.2d 319;  Cody v. DiLorenzo, 304 A.D.2d 705, 757 N.Y.S.2d 789;  Voss v. D & C Parking, 299 A.D.2d 346, 749 N.Y.S.2d 76;  see also Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, 973, 622 N.Y.S.2d 496, 646 N.E.2d 798).   In order to prevail on its motion for summary judgment dismissing the complaint, the defendant therefore was required to demonstrate that it did not create the icy condition and had neither actual nor constructive notice of it (see Nielsen v. Metro-North Commuter R.R. Co., supra;  Fahey v. Serota, supra at 336-337, 806 N.Y.S.2d 70;  Voss v. D & C Parking, supra at 346-347, 749 N.Y.S.2d 76).   The defendant failed to satisfy this burden.

In support of its motion, the defendant demonstrated, prima facie, that it lacked actual notice of the icy condition.   The defendant submitted the affidavit of one of its principals who stated that the defendant had not been notified of the condition.   The defendant also submitted the deposition testimony of the plaintiff, in which she admitted that although she had observed the icy condition upon entering the building, at approximately 8:30 A.M., she had told no one about it.   In opposition, the plaintiff failed to raise a triable issue of fact with respect to the issue of actual notice.   As to constructive notice, however, although the plaintiff's evidence of a recurring condition was insufficient (see Coyne v. Talleyrand Partners, L.P., 22 A.D.3d 627, 629, 802 N.Y.S.2d 513), the plaintiff raised a triable issue of fact as to whether the icy condition was present for a sufficient length of time before the accident to permit the defendant to discover and eliminate it, thus precluding summary judgment in favor of the defendant (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Dancy v. New York City Hous. Auth., 23 A.D.3d 512, 513, 806 N.Y.S.2d 630;  Scholz v. Kolan Holdings, 305 A.D.2d 489, 490, 758 N.Y.S.2d 827;  Bergen v. Carlin, 297 A.D.2d 692, 693, 747 N.Y.S.2d 535).

 In addition, a property owner may be liable for injuries that result from a slip-and-fall accident on ice where the property owner's snow removal efforts caused or exacerbated the icy condition (see Knee v. Trump Vil. Constr. Corp., 15 A.D.3d 545, 546, 791 N.Y.S.2d 576;  Karalic v. City of New York, 307 A.D.2d 254, 255, 762 N.Y.S.2d 271;  Mahoney v. Affrunti, 297 A.D.2d 717, 747 N.Y.S.2d 397).   Here, the defendant established, prima facie, its entitlement to judgment as a matter of law by demonstrating, through the deposition testimony of its principal, that it could not have created the dangerous condition because it did not perform snow removal at the premises and that all such work was performed by an independent contractor.   In opposition, the plaintiff raised a triable issue of fact by submitting her own deposition testimony, photographs taken on the day after the accident, and meteorological data which demonstrated that the ice on which she fell may have formed as a result of the melting of snow that had negligently been piled on either side of the walkway by the snow removal contractor (see Vilorio v. Suffolk Y Jewish Community Ctr., Inc., 33 A.D.3d 696, 823 N.Y.S.2d 101;  Knee v. Trump Vil. Constr. Corp., supra ).   Although, as a general rule, a property owner is not responsible for conditions created by an independent contractor (see Kleeman v. Rheingold, 81 N.Y.2d 270, 273, 598 N.Y.S.2d 149, 614 N.E.2d 712;  Rosenberg v. Equitable Life Assur. Socy. of U.S., 79 N.Y.2d 663, 668, 584 N.Y.S.2d 765, 595 N.E.2d 840), the defendant may be held vicariously liable for the negligence of its independent contractor if such negligence violated the defendant's nondelegable duty as the property owner to provide safe ingress and egress (see Rosenberg v. Equitable Life Assur. Socy. of U.S., supra at 668, 584 N.Y.S.2d 765, 595 N.E.2d 840;  Backiel v. Citibank, 299 A.D.2d 504, 505, 751 N.Y.S.2d 492;  June v. Zikakis Chevrolet, 199 A.D.2d 907, 606 N.Y.S.2d 390;  Thomassen v. J & K Diner, 152 A.D.2d 421, 549 N.Y.S.2d 416).