WILLIAMS v. 592

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

Emma WILLIAMS, Plaintiff-Appellant, v. The CITY OF NEW YORK, et al., Defendants-Respondents, 592 Lenox Food Corp., et al., Defendants.

Decided: June 23, 2005

BUCKLEY, P.J., MARLOW, SULLIVAN, GONZALEZ, SWEENY, JJ. Zuller & Bondy, LLP, New York (Michael E. Zuller of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Scott Shorr of counsel), for City of New York, respondent. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York (Anastasios P. Tonorezos of counsel), for H & R Block Eastern Tax Services, Inc., respondent.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered July 8, 2004, which, in an action for personal injuries sustained when plaintiff slipped and fell on snow and/or ice in front of defendant-respondent lessee's premises, insofar as appealed from, granted the lessee's cross motion for summary judgment dismissing the complaint as against it, and, sua sponte, dismissed the complaint as against defendant-respondent City of New York, unanimously affirmed, without costs.   Appeal from order, same court and Justice, entered August 25, 2004, which deemed plaintiff's motion to reargue and renew as one to reargue only, and, so considered, denied the motion, unanimously dismissed as taken from a nonappealable order, without costs.

 Plaintiff fails to adduce any evidence that the lessee made any attempts to remove the second snowfall from in front of its premises (see Gaudino v. 511 W 232nd St. Owners Corp., 279 A.D.2d 272, 719 N.Y.S.2d 39 [2001] ), and her claim that she slipped on ice that resulted from the lessee's negligent efforts to remove the first snowfall is speculative (see Nadel v. Cucinella, 299 A.D.2d 250, 750 N.Y.S.2d 588 [2002] ).   Concerning the City, there is no evidence that it had actual or constructive notice of the piling of snow in the nearby tree well that allegedly caused the sidewalk to be dangerously icy, or that a sufficient period of time had elapsed to allow the City to remedy that condition (see Valentine v. City of New York, 86 A.D.2d 381, 449 N.Y.S.2d 991 [1982], affd. 57 N.Y.2d 932, 457 N.Y.S.2d 240, 443 N.E.2d 488 [1982];  Epstein v. City of New York, 250 A.D.2d 547, 673 N.Y.S.2d 141 [1998] ).   The motion court properly deemed plaintiff's motion to reargue and renew as one solely to reargue, the denial of which is not appealable, since plaintiff did not present any new or previously unavailable facts in support thereof (see Lichtman v. Mount Judah Cemetery, 269 A.D.2d 319, 320, 705 N.Y.S.2d 23 [2000], lv. dismissed 95 N.Y.2d 860, 714 N.Y.S.2d 704, 737 N.E.2d 946 [2000] ).