SAVAGE v. SHAH

Reset A A Font size: Print

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

Catherine T. SAVAGE, et al., Respondents, v. Bhupendrah B. SHAH, Appellant.

Decided: September 30, 2002

SANDRA J. FEUERSTEIN, J.P., NANCY E. SMITH, WILLIAM D. FRIEDMANN and THOMAS A. ADAMS, JJ. Martin, Fallon & Mulĺe, Huntington, NY, (Larry M. Shaw of counsel), for appellant. Genevieve Lane LoPresti, Mineola, NY, for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Martin, J.), dated November 1, 2001, which denied his motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The injured plaintiff, Catherine T. Savage, allegedly slipped and fell on snow and ice while walking on a public sidewalk abutting property owned by the defendant.   A driveway which provided access to the property traversed the sidewalk.   The Supreme Court denied the defendant's motion for summary judgment dismissing the complaint.   We reverse.

 “It is well settled that an owner of property is under no duty to pedestrians to remove ice and snow that naturally accumulates upon the sidewalk in front of his or her premises” (see Prado v. City of New York, 276 A.D.2d 765, 717 N.Y.S.2d 890).  “A failure to remove all of the snow is not negligence, and liability will not result unless it is shown that the defendant made the sidewalk more dangerous” (Packes v. Bally Total Fitness Corp., 278 A.D.2d 212, 716 N.Y.S.2d 910;  see also Alexis v. Lessey, 275 A.D.2d 754, 714 N.Y.S.2d 233).

 After the defendant made a prima facie showing of his entitlement to summary judgment as a matter of law, the plaintiffs offered no evidentiary proof sufficient to raise a triable issue of fact (see CPLR 3212[b] ) that any attempts at snow removal on the part of the defendant rendered the sidewalk more dangerous (see Packes v. Bally Total Fitness Corp., supra;  see also Stewart v. Yeshiva Nachlas Haleviym, 186 A.D.2d 731, 589 N.Y.S.2d 792).   In addition, while it is true that an abutting landowner will be responsible for injuries occurring on a sidewalk which he or she puts to special use (see D'Ambrosio v. City of New York, 55 N.Y.2d 454, 462, 450 N.Y.S.2d 149, 435 N.E.2d 366), such as a driveway (see Azzara v. Revellese, 146 A.D.2d 592, 536 N.Y.S.2d 519), the plaintiff must prove that the special use caused the defective condition and that the special use was a proximate cause of the accident (see Blum v. City of New York, 267 A.D.2d 341, 342, 700 N.Y.S.2d 65).   After the defendant established that his special use of the driveway did not cause the hazardous condition, the plaintiffs failed to raise a triable issue of fact on that issue (see Blum v. City of New York, supra;  see also Oathout v. Soiefer Bros. Realty Corp., 253 A.D.2d 863, 678 N.Y.S.2d 335).

Copied to clipboard