MARINIS v. LOSCHIAVO (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), dated November 22, 2021.  The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant 149–53 14th Avenue, LLC, and substituting therefor a provision denying that branch of the motion;  as so modified, the order is affirmed, with costs to the plaintiff.

The plaintiff allegedly was injured when he slipped and fell on snow and ice in front of real property owned by the defendant 149–53 14th Avenue, LLC. The plaintiff commenced this action to recover damages for personal injuries against 149–53 14th Avenue, LLC, and the defendant Mark Loschiavo, a member of 149–53 14th Avenue, LLC. The defendants moved for summary judgment dismissing the complaint.  In an order dated November 22, 2021, the Supreme Court granted the motion.  The plaintiff appeals.

The defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against Loschiavo on the ground that he owed no duty to the plaintiff, as Loschiavo was not an owner of the subject premises and did not create the snow and ice condition (see Finck v. VL 10 1620 New Hwy., LLC, 203 A.D.3d 892, 892, 164 N.Y.S.3d 656;  Maltese v. Metropolitan Transp. Auth., 179 A.D.3d 780, 783–784, 118 N.Y.S.3d 57;  Zorin v. City of New York, 137 A.D.3d 1116, 1118, 28 N.Y.S.3d 116).  In opposition, the plaintiff failed to demonstrate the existence of a triable issue of fact.  Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against Loschiavo.

The Supreme Court erred, however, in granting that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against 149–53 14th Avenue, LLC. Section 7–210 of the Administrative Code of the City of New York imposes a nondelegable duty on certain landowners, which includes 149–53 14th Avenue, LLC, to maintain sidewalks abutting their land, including the removal of snow and ice (see Xiang Fu He v. Troon Mgt., Inc., 34 N.Y.3d 167, 169, 114 N.Y.S.3d 14, 137 N.E.3d 469;  see Gambino v. 475 Park Ave. S., LLC, 197 A.D.3d 621, 622, 150 N.Y.S.3d 235).  “[T]he duty applies with full force notwithstanding an owner's transfer of possession to a lessee or maintenance agreement with a nonowner” (Xiang Fu He v. Troon Management, Inc., 34 N.Y.3d at 169, 114 N.Y.S.3d 14, 137 N.E.3d 469;  Zamora v. David Caccavo, LLC, 190 A.D.3d 895, 896, 136 N.Y.S.3d 751).  Landowners, however, are not strictly liable for all personal injuries that occur on the abutting sidewalk, as “section 7–210 adopts a duty and standard of care that accords with traditional tort principles of negligence and causation” (Xiang Fu He v. Troon Mgt., Inc., 34 N.Y.3d at 171, 114 N.Y.S.3d 14, 137 N.E.3d 469;  see Zamora v. David Caccavo, LLC, 190 A.D.3d at 897, 136 N.Y.S.3d 751).

“A defendant property owner moving for summary judgment in an action predicated upon the presence of snow or ice has the burden of establishing, prima facie, that it neither created the snow or ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition” (Miller v. Terrace City Lodge No. 1499, Improved Benevolent Prot. Order of the Elks of the World of Yonkers, N.Y., Inc., 197 A.D.3d 643, 644, 153 N.Y.S.3d 118;  see Islam v. City of New York, 218 A.D.3d 449, 450, 192 N.Y.S.3d 534).  “A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it” (Miller v. Terrace City Lodge No. 1499, Improved Benevolent Protection Order of the Elks of the World of Yonkers, N.Y., Inc., 197 A.D.3d at 644, 153 N.Y.S.3d 118;  see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774).  “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” (Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222;  see Islam v. City of New York, 218 A.D.3d at 450, 192 N.Y.S.3d 534;  Ahmetaj v. Mountainview Condominium, 171 A.D.3d 683, 684, 98 N.Y.S.3d 104).

Here, the defendants failed to establish, prima facie, that 149–53 14th Avenue, LLC, did not have constructive notice of the alleged snow and ice condition that caused the plaintiff to fall.  The evidence submitted by the defendants failed to establish when the sidewalk was last cleaned or inspected relative to when the plaintiff fell (see Islam v. City of New York, 218 A.D.3d at 451, 192 N.Y.S.3d 534;  Edwards v. Genting N.Y., LLC, 217 A.D.3d 749, 750, 191 N.Y.S.3d 149).  Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against 149–53 14th Avenue, LLC, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The plaintiff's remaining contention is without merit.

BARROS, J.P., CHAMBERS, FORD and LANDICINO, JJ., concur.