EPSTEIN v. Helmsley Spear Management, Inc., Defendant.

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

Miriam EPSTEIN, et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant-Respondent, Helmsley Spear Management, Inc., Defendant.

Decided: May 28, 1998

Before LERNER, P.J., and ELLERIN, RUBIN, TOM and ANDRIAS, JJ. Christian Aaron Pickney, for Plaintiffs-Appellants. Timothy J. O'Shaughnessy, for Defendant-Respondent.

Order, Supreme Court, New York County (Jane Solomon, J.), entered April 7, 1997, which granted defendant-respondent's motion for summary judgment dismissing the compliant, unanimously affirmed, without costs.

Meteorological evidence established subfreezing temperatures throughout the period February 8 to 11, 1994, snowfalls of more than nine inches on February 8 and 9, and a snowfall of almost 13 inches on February 11, which, according to plaintiff, ended by 11:00 a.m., some five hours before she fell.   With respect to these same snowfalls, this Court has held that defendant City was under no obligation to remove the snow and ice as late as February 14 (Cheung v. City of New York, 234 A.D.2d 91, 650 N.Y.S.2d 687;  see also, Martinez v Columbia Presbyterian Med Center, 238 A.D.2d 286, 656 N.Y.S.2d 271).   Thus, it does not avail plaintiff to speculate that she fell on icy accumulation attributable to the “old” February 8 snowfall (see, Valentine v. City of New York, 86 A.D.2d 381, 384, 449 N.Y.S.2d 991, affd. 57 N.Y.2d 932, 457 N.Y.S.2d 240, 443 N.E.2d 488).   We also note the City's proof that between February 7 and 13, 1994, neither it nor any contractor hired by it removed snow from the sidewalk where plaintiff fell, and the absence of any rebutting evidence.