BERGEN v. CARLIN

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

Joan BERGEN, et al., Respondents, v. William J. CARLIN, Jr., Putnam County Commissioner of Finance, as Temporary Administrator of the Estate of Gertrude Fleckel, Appellant.

Decided: September 23, 2002

FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES and BARRY A. COZIER, JJ. Robert P. Tusa, Yonkers, N.Y. (David Holmes of counsel), for appellant. Gregory W. Bagen, Brewster, NY, for respondents.

In an action to recover damages for personal injuries, etc., William J. Carlin, Jr., Putnam County Commissioner of Finance, as Temporary Administrator of the Estate of Gertrude Fleckel, appeals from an order of the Supreme Court, Putnam County (Sweeny, J.), dated August 14, 2001, which denied Gertrude Fleckel's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff Joan Bergen (hereinafter the plaintiff) alleged that she slipped on Gertrude Fleckel's snow-and-ice-covered, unpaved driveway, injuring herself.   Fleckel moved for summary judgment dismissing the complaint, inter alia, on the ground that the driveway was reasonably safe under the circumstances.

 A property owner has an obligation to maintain his or her property in a reasonably safe condition (see Di Ponzio v. Riordan, 89 N.Y.2d 578, 582, 657 N.Y.S.2d 377, 679 N.E.2d 616;  Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868).   The measure of liability is foreseeability, which depends on the likelihood of the injured party's presence in light of the frequency of the use of the area where the accident occurred (see DeMarrais v. Swift, 283 A.D.2d 540, 724 N.Y.S.2d 766;  see also Basso v. Miller, supra).   Given the evidence in the record concerning the frequency of the use of the driveway by visitors and Fleckel's relationship with the plaintiff, Fleckel failed to establish that Bergen's presence on the property on the date of the accident was unforeseeable as a matter of law.

 It is well settled that a property owner may be held liable for a hazardous condition on the premises created by snow or ice only if the owner had actual or constructive notice of the condition and had a reasonably sufficient time after the conclusion of the snowfall or temperature fluctuation to remedy the situation (see Brunson v. National Amusements, 292 A.D.2d 413, 739 N.Y.S.2d 407;  Gam v. Pomona Professional Condominium, 291 A.D.2d 372, 737 N.Y.S.2d 113;  see also Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, 622 N.Y.S.2d 496, 646 N.E.2d 798).

 Fleckel failed to demonstrate that she lacked notice of the alleged icy condition of her driveway, and she did not claim that there was precipitation in progress at the time of the accident.   Although Fleckel contended that climatological records showed that the icy condition was the result of overnight freezing temperatures, and, therefore, she did not have sufficient time to remedy the condition, we agree with the Supreme Court that this issue cannot be resolved as a matter of law on the motion papers.

The contention that the snow-and-ice-covered condition of the driveway was inherent to the nature of the land, and therefore relieved Fleckel of any duty to take remedial measures, is without merit (cf.  Moriello v. Stormville Airport Antique Show & Flea Mkt., 271 A.D.2d 664, 706 N.Y.S.2d 463).

Accordingly, the Supreme Court properly denied Fleckel's motion for summary judgment.

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