SAITTA v. Victoria & Richard Mackenzie-Childs, Ltd., Defendant.

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

Jerome SAITTA, Plaintiff, v. The CITY OF NEW YORK, Defendant-Respondent, Bicent Properties, Defendant-Appellant, Victoria & Richard Mackenzie-Childs, Ltd., Defendant.

Decided: March 27, 2001

ROSENBERGER, J.P., WILLIAMS, TOM, LERNER and BUCKLEY, JJ. Susan Choi-Hausman, for Defendant-Respondent. Adam W. Scheinbach, for Defendant-Appellant.

Order, Supreme Court, New York County (Kibbie Payne, J.), entered May 16, 2000, which, in a slip and fall action, denied the motion of defendant-appellant property owner Bicent Properties (Bicent) and the cross motion of defendant City of New York for summary judgment, unanimously modified, on the law and upon a search of the record, to grant summary judgment dismissing the complaint as against The City of New York, and otherwise affirmed, without costs.   The Clerk is directed to enter judgment in favor of defendant-respondent City of New York dismissing the complaint.

 Summary judgment was properly denied to Bicent since triable issues remain as to whether it created or heightened the icy hazard on the sidewalk that is alleged to have caused plaintiff to slip and fall (compare, Gaudino v. 511 W. 232nd St. Owners Corp., 279 A.D.2d 272, 719 N.Y.S.2d 39;   Bale v. Pyron, 256 A.D.2d 1128, 684 N.Y.S.2d 393).   The action should, however, have been dismissed as against the City in view of the meteorological evidence showing that the precipitation ended on the morning preceding plaintiff's accident, with sub-freezing temperatures on that day and the two preceding days (see, Cheung v. City of New York, 234 A.D.2d 91, 650 N.Y.S.2d 687;  Valentine v. City of New York, 86 A.D.2d 381, 449 N.Y.S.2d 991, affd. 57 N.Y.2d 932, 457 N.Y.S.2d 240, 443 N.E.2d 488;  compare, Rugova v. 2199 Holland Ave. Apt. Corp., 272 A.D.2d 261, 263, 708 N.Y.S.2d 390).