NO. 705315/14, 2015-11688

147 A.D.3d 933 (2017)

48 N.Y.S.3d 169

2017 NY Slip Op 01193

MING HSIA, Respondent, v. IRVING VALLE et al., Appellants.

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

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Dufficy, J.), entered October 28, 2015, as denied their motion for summary judgment dismissing the complaint.

[Prior Case History: 2015 NY Slip Op 32136(U).]

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff allegedly slipped and fell on an icy condition on a sidewalk abutting property owned by the defendants and commenced this action to recover damages. The defendants moved for summary judgment dismissing the complaint. The Supreme Court, inter alia, denied the motion. The defendants appeal.

"The owner or lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so" (Bruzzo v County of Nassau, 50 A.D.3d 720, 721 [2008]; see Bleich v Metropolitan Mgt., LLC, 132 A.D.3d 933, 935 [2015]; Schron v Jean's Fine Wine & Spirits, Inc., 114 A.D.3d 659, 660 [2014]). "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 AD3d at 660-661; see Ferguson v Shu Ham Lam, 74 A.D.3d 870, 871 [2010]; Robles v City of New York, 56 A.D.3d 647, 647-648 [2008]).

In 2003, the New York City Council enacted section 7-210 of the Administrative Code of the City of New York to shift tort liability for injuries resulting from hazardous sidewalk conditions from the City to abutting property owners (see Vucetovic v Epsom Downs, Inc., 10 N.Y.3d 517, 519-520 [2008]). However, this liability shifting provision does not apply to "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes" (see Administrative Code of City of NY § 7-210 [b]). "The purpose of the exception in the Code is to recognize the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair" (Coogan v City of New York, 73 A.D.3d 613, 614 [2010]; see Aracena v City of New York, 136 A.D.3d 717, 718 [2016]; Meyer v City of New York, 114 A.D.3d 734 [2014]; Howard v City of New York, 95 A.D.3d 1276, 1277 [2012]).

Here, the defendants established, prima facie, that as owners of a two-family residential property which was owner occupied, they were exempt from liability pursuant to section 7-210 (b) of the Administrative Code (see Kronenberg v Narayan, 135 A.D.3d 711, 712 [2016]; Villamar v Pacheco, 135 A.D.3d 853 [2016]; Starkou v City of New York, 128 A.D.3d 802 [2015]; Lai-Hor Ng Yiu v Crevatas, 103 A.D.3d 691 [2013]). The defendants failed, however, to establish, prima facie, that they did not engage in snow and ice removal work prior to the accident or that their snow and ice removal work did not create or exacerbate the hazardous condition which allegedly caused the plaintiff to fall (see Forlenza v Miglio, 130 A.D.3d 567, 568 [2015]; Arashkovitch v City of New York, 123 A.D.3d 853, 854 [2014]; Robles v City of New York, 56 AD3d at 648).

Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.


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