Martinez v. KhaimovMartinez v. Khaimov
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated April 28, 2009, which granted the defendants’ motion for summary judgment dismissing the complaint.
The plaintiff alleged that she was injured on the night of February 20, 2007, when she slipped and fell on a mound of snow located on the public sidewalk adjacent to an eight-unit apartment building in Brooklyn (hereinafter the building) owned by the defendants. The defendants do not live in the building. The parties agree that weather records reflect that the last snowfall prior to the date of the plaintiffs accident occurred on February 14, 2007.
After the commencement of this action, the defendants moved for summary judgment dismissing the complaint, arguing, among other things, that they neither created nor had constructive notice of the snow condition that allegedly caused the plaintiff to slip and fall (hereinafter the alleged snow mound). The Supreme Court granted the motion and the plaintiff appeals. We reverse.
Further, even in the absence of a statute or ordinance specifically imposing tort liability upon a property owner for failing to remove snow and ice that naturally accumulates upon the abutting
Accordingly, to prevail on their summary judgment motion, the defendants were required to demonstrate, as a matter of law, that they neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Totten v Cumberland Farms, Inc., 57 AD3d 653 [2008]; DeFalco v BJ’s Wholesale Club, Inc., 38 AD3d 824 [2007]).
The defendants failed to make a prima facie showing that their snow removal efforts at the building did not create or exacerbate the alleged snow mound on the abutting sidewalk which allegedly caused the plaintiff to fall (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In support of their motion, they proffered, inter alia, the deposition testimony of the defendant Mikhail Khaimov. Khaimov testified that in February 2007, a part-time employee had been responsible for removing snow from the sidewalk adjacent to the building, that Khaimov had never personally undertaken any snow removal efforts at the building, and that he did not keep any records regarding snow removal at the building, and that he had no recollection of how much snow had fallen in February 2007. Such testimony failed to establish that someone on the defendants’ behalf did not create the alleged snow mound through negligent snow removal (see Robles v City of New York, 56 AD3d at 648; Martinez v City of New York, 20 AD3d 513, 514-515 [2005]).
Moreover, with regard to their potential liability under the Sidewalk Law, the defendants failed to establish that they lacked constructive notice of the alleged snow mound (see Gangemi v City of New York, 13 Misc 3d at 1130). “On a motion for summary judgment to dismiss the complaint based upon lack of notice, the defendant is required to make a prima facie showing affirmatively establishing the absence of notice as a matter of law” (Goldman v Waldbaum, Inc., 248 AD2d 436, 437 [1998]). This burden cannot be satisfied merely by pointing out gaps in the plaintiffs case, as the defendants did here (see Pierre-Louis v DeLonghi Am., Inc., 66 AD3d at 859; Baines v G&D Ventures, Inc., 64 AD3d 528, 529 [2009]; Totten v Cumberland Farms, Inc., 57 AD3d at 654). Although Khaimov testified at his deposition that he inspected the building two or three times a week, he failed to provide any testimony as to when he last inspected
Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment, regardless of the sufficiency of the plaintiffs opposition papers (see Alvarez v Prospect Hosp., 68 NY2d at 324).
Mastro, J.P., Dickerson, Belen and Chambers, JJ., concur.