793 N.Y.S.2d 8 | N.Y. App. Div. | 2005
Order, Supreme Court, Bronx County (George D. Salerno, J.), entered May 21, 2004, which, in an action for personal injuries sustained in a slip and fall on an ice patch in front of defendant-appellant lessee’s premises, insofar as appealed from, denied motions by the lessee and defendant-appellant maintenance contractor for summary judgment dismissing the complaint, and by the lessee for conditional summary judgment on its cross claim against the contractor for indemnification, unanimously modified, on the law, to dismiss the complaint and any cross claims as against the lessee, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant-appellant Fleet Bank, N.A., dismissing the complaint as against it.
Plaintiff alleges that the sidewalk ice patch on which she fell formed as a result of the negligent removal of a large snowfall five days before. Her expert opines that the light snow that was falling at the time plaintiff fell served to hide the ice patch from view, but had nothing to do with its formation. Rather, the patch had already been formed as a result of the melting and refreezing of snow from the abutting snowbank created after the heavy snowfall, and that the melting and refreezing were caused by temperature changes, the negligent application of salt or snow melt chemical at the time of the heavy snowfall, and the negligent failure after the heavy snowfall to maintain the newly created path. Viewing the evidence in the light most favorable to plaintiff, an issue of fact exists as to whether the contractor’s methods of stacking the snow and/or salting the path created a more hazardous condition than would have obtained had it not undertaken any snow removal operations at all (see Brownell v City of New York, 277 AD2d 31 [2000], lv denied 96 NY2d 712 [2001]; Santiago v New York City Hous. Auth., 274 AD2d 335 [2000]; Glick v City of New York, 139 AD2d 402 [1988]). Given this issue, for present purposes it does not avail the contractor to argue that it owed no duty of care to plaintiff (cf. Espinal v
