Espinell v. DicksonEspinell v. Dickson
“[I]t is settled that the duty of a landowner to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while the storm is in progress, and does not commence until a reasonable time after the storm has ended” (Pippo v City of New York, 43 AD3d 303, 304 [2007]). This Court has further held that “[a] reasonable time is that period within which the [landowner] should have taken notice of the icy condition and, in the exercise of reasonable care, remedied it by clearing the sidewalk or otherwise eliminating the danger” (Valentine v City of New York, 86 AD2d 381, 383 [1982], affd 57 NY2d 932 [1982]).
As a matter of law, defendants should not be held liable for plaintiff‘s injuries. As noted, the record shows that defendants lacked actual or constructive notice of the icy condition—due to the fact that the icy condition was not readily visible and to the relatively short, early morning interval between the end of the storm and the accident—and presents no evidence that defendants created the hazard (see Gordon v American Museum of Natural History, 67 NY2d 836, 837-838 [1986]; Garcia v New York City Hous. Auth., 183 AD2d 619, 620 [1992]). Although the report filed by the New York City Fire Department emergency medical technician (EMT) who responded to the accident states that the site of the accident was very icy, it does not indicate whether the EMT personally observed such condition, or was merely recounting plaintiff‘s after-the-fact explanation of the
Mazzarelli, J.P., dissents in a memorandum as follows: Plaintiff slipped and fell on a patch of ice in front of defendants’ building at 8:45 a.m. on December 15, 2003. Certified meteorological records submitted by plaintiff demonstrated that on the day before the accident approximately five inches of snow fell over a period of seven hours. The snow ended at about 3:00 p.m., before changing to rain for the remainder of that day. Most of the snow and ice melted, but a trace of snow and ice remained at the end of the day on exposed, untreated, undisturbed outdoor surfaces. On the day of the accident, the rain changed to sleet at about 4:00 a.m. and continued until 6:00 a.m. Thereafter, a trace of snow fell, stopping at 7:00 a.m. According to an uncontradicted affidavit submitted by plaintiff‘s meteorological expert, the ice which caused plaintiff’s accident was created by the combination of precipitation that fell during the preceding day and until 6:00 a.m. on December 15.
Defendants moved for summary judgment, arguing that plaintiff could not establish that they had actual or constructive notice of the icy condition in sufficient time to remedy it before the accident. The court agreed, holding that there was “no evidence at all” that defendants either created the icy condition or were aware of it in time to clear it, or that an icy condition had existed for a long enough time that defendants should have been aware of its existence.
There is no question that, under the “storm in progress” doctrine, any duty defendants had to remedy the icy condition existed no earlier than 6:00 a.m., when all precipitation but a trace amount of snow ceased falling. Rather, the question is whether defendants established that, as a matter of law, the two hours and 45 minutes between the end of the storm and the accident did not provide defendants with sufficient opportunity to clean the sidewalk. To decide that question requires a close review of the record facts.
As described above, an appreciable winter storm occurred the day before the accident, and continued until the following morning. The ice on which plaintiff slipped covered approximately four feet of the sidewalk and was “right in front” of
“This Court has held that ‘[there] is no formula for determining liability on the basis of any ratio between the number of inches of snowfall and the time elapsed before the happening of the accident and, ordinarily . . . these factors, as well as all the other conditions, constitute a jury question’ ” (Valentine v City of New York, 86 AD2d 381, 386 [1982], affd 57 NY2d 932 [1982], quoting Yonki v City of New York, 276 App Div 407, 410 [1950]). In both of those cases, the plaintiffs slipped on ice or snow resulting from an historic storm, a 25.8 inch snowfall in Yonki, and an ice storm in Valentine that was described as the second worst in the preceding 50 years. We determined that in each case the City established that it acted reasonably in deploying its sanitation crews first to clear roadways and areas of heavy pedestrian traffic, and only then to clear sidewalks on secondary and tertiary streets such as those where the accidents occurred. Accordingly, we determined, as a matter of law, that under those circumstances it was not unreasonable for the City not to have remedied the wintry conditions encountered by the plaintiffs even though, in Yonki, the accident occurred 60 hours after the cessation of the storm, and, in Valentine, 30 1/4 hours.
However, the facts here are dramatically different from those in Yonki and Valentine. Indeed, they are much closer to the facts in Gonzalez v American Oil Co. (42 AD3d 253 [2007]). In that case, this Court affirmed Supreme Court’s holding that issues of fact on the question of constructive notice precluded summary judgment. In Gonzalez, the plaintiff slipped on a three-foot-by-six-foot patch of ice which was six feet from the entrance of a gasoline station convenience store. On the day of the accident only a trace amount of snow fell, but none within three
“[i]f the ice was there that long, even if it were transparent, defendants should have discovered it, and would have had they made any reasonable effort to keep the area clear of ice and snow.
“From these facts—the large size of the ice patch, its consistency as well as its close proximity to the store’s front door, and defendants’ failure to perform any meaningful maintenance—one could reasonably conclude that defendants should have discovered this condition well before plaintiff‘s fall and remedied it” (42 AD3d at 256).
Here, plaintiff testified that the patch of ice on which he fell covered a four foot area—smaller than the area in Gonzalez, but significant enough that an issue of fact exists as to whether defendants should have noticed it.1 In addition, as in Gonzalez, the ice patch was close in proximity to defendants’ building. Moreover, the amount of time which elapsed here is only 15 minutes less than the amount at issue in Gonzalez. Also similar to Gonzalez, defendants in this case indicated that they would have been able to remedy the icy condition immediately upon becoming aware of it. Indeed, Mr. Dickson testified that his custom when there had been wintry precipitation overnight was to inspect the sidewalk outside the property immediately upon rising in the morning. The majority’s observation that constructive notice was absent as a matter of law because of the “short, early morning interval between the end of the storm and the accident,” is simply not supported by the record.
This Court has held that two hours is not as a matter of law insufficient time to create a duty to clean ice (see Powell v MLG Hillside Assoc., 290 AD2d 345 [2002]). In Powell, this Court stated: “In applying [the ‘storm in progress’] rule in derogation of liability, we should be less concerned with what was happening at the very moment of the accident. More relevant is what was happening during the period immediately preceding the ac