BRANCIFORTE v. (and a Third-Party action).

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

Robert BRANCIFORTE, etc., Appellant, v. 2248 THIRTY FIRST STREET, LLC, et al., Respondents (and a Third-Party action).

2017–12308

Decided: April 17, 2019

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, JJ. Sacco & Fillas, LLP, Astoria, N.Y. (James R. Baez of counsel), for appellant. Stonberg Moran, LLP, New York, N.Y. (Kristyn M. Boyd of counsel), for respondents.

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' motion for summary judgment dismissing the amended complaint is denied.

On December 13, 2013, Pilar Branciforte allegedly slipped and fell on ice on the sidewalk abutting a McDonald's restaurant in Queens.  It is undisputed that at the time of the accident, the premises were managed by the defendant Solil Management, LLC (hereinafter Solil), owned by the defendant 2248 Thirty First Street, LLC (hereinafter 2248), and leased to the defendant PCM Properties, Inc. (hereinafter PCM) (hereinafter collectively the defendants), who operated the premises as a McDonald's restaurant.  Pilar commenced this action to recover damages for the injuries she allegedly sustained.  During the pendency of the action, Pilar died, and Robert Branciforte was appointed executor of Pilar's estate and was substituted in place of Pilar as the plaintiff.

The defendants moved for summary judgment dismissing the amended complaint on the grounds, among others, that they did not create the alleged icy condition or have actual or constructive notice of the condition.  The Supreme Court, among other things, granted the defendants' motion.  The plaintiff appeals.

Administrative Code of the City of New York § 7–210 imposes a nondelegable duty on a property owner to maintain and repair the sidewalk abutting its property, and specifically imposes liability upon certain property owners for injuries resulting from a violation of the code provision (see Hsu v. City of New York, 145 A.D.3d 759, 43 N.Y.S.3d 139;  Zorin v. City of New York, 137 A.D.3d 1116, 1117, 28 N.Y.S.3d 116).  “In the absence of a statute or ordinance imposing tort liability on the lessee, it can be held liable only if it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous” (Schron v. Jean's Fine Wine & Spirits, Inc., 114 A.D.3d at 660–661, 979 N.Y.S.2d 684;  see Bleich v. Metropolitan Mgt., LLC, 132 A.D.3d at 935, 19 N.Y.S.3d 527;  Forlenza v. Miglio, 130 A.D.3d at 568, 13 N.Y.S.3d 183;  Ferguson v. Shu Ham Lam, 74 A.D.3d 870, 871, 903 N.Y.S.2d 101;  Robles v. City of New York, 56 A.D.3d 647, 647–648, 868 N.Y.S.2d 114;  Bruzzo v. County of Nassau, 50 A.D.3d at 721–722, 854 N.Y.S.2d 774).

Here, there was no statute or ordinance that imposes tort liability on PCM, as lessee of the premises, for the failure to maintain the sidewalk abutting its leased portion of the premises.  However, PCM failed to establish its prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it by demonstrating that it was free from negligence.  PCM failed to eliminate triable issues of fact as to whether it undertook snow and ice removal efforts on the date of the accident to clear the area of the sidewalk where Pilar allegedly slipped and fell, or whether any snow and ice removal efforts undertaken by it created or exacerbated the icy condition that allegedly caused Pilar to fall (see Bleich v. Metropolitan Mgt., LLC, 132 A.D.3d at 935, 19 N.Y.S.3d 527;  Forlenza v. Miglio, 130 A.D.3d at 568, 13 N.Y.S.3d 183;  see also Robles v. City of New York, 56 A.D.3d at 648, 868 N.Y.S.2d 114;  Legoff v. 34th St. Partnership, 305 A.D.2d 552, 759 N.Y.S.2d 393).

2248, as owner of the premises abutting the sidewalk where Pilar allegedly slipped and fell, and Solil, its managing agent, failed to establish, prima facie, that they lacked constructive notice of the alleged icy condition.  Section 7–210 of the Administrative Code imposes a nondelegable duty on 2248 to maintain the sidewalk abutting the premises, where Pilar allegedly fell (see Hsu v. City of New York, 145 A.D.3d at 759, 43 N.Y.S.3d 139;  Zorin v. City of New York, 137 A.D.3d at 1116, 28 N.Y.S.3d 116).  In a premises liability case, a defendant real property owner or a party in possession or control of real property who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (see Kyte v. Mid–Hudson Wendico, 131 A.D.3d 452, 452, 15 N.Y.S.3d 147;  Pampalone v. FBE Van Dam, LLC, 123 A.D.3d 988, 1 N.Y.S.3d 155).  Here, neither 2248 nor Solil established when the subject portion of the sidewalk was last inspected relative to when Pilar slipped and fell (see Torre v. Aspen Knolls Estates Home Owners Assn., Inc., 150 A.D.3d 789, 790, 54 N.Y.S.3d 84;  Rong Wen Wu v. Arniotes, 149 A.D.3d 786, 787, 50 N.Y.S.3d 563).  Accordingly, 2248 and Solil failed to establish, prima facie, that they did not have constructive notice of the condition that allegedly caused the plaintiff decedent's fall (see Oliveri v. Vassar Bros. Hosp., 95 A.D.3d 973, 975, 943 N.Y.S.2d 604).

The defendants' remaining contention is without merit.

Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied their motion for summary judgment dismissing the amended complaint without regard to the sufficiency of the plaintiff's opposition papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

MASTRO, J.P., ROMAN, COHEN and CONNOLLY, JJ., concur.

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