Espinell v. Dickson

Plaintiff slipped and fell on a patch of ice on the sidewalk, at the curb in front of defendants’ building at 8:45 a.m. The record establishes that it had rained, snowed and sleeted during the preceding day and night, that any precipitation that could have caused the icy condition, including the freezing drizzle of the early morning hours, had ceased by 6:00 a.m., and that snow flurries fell until approximately 7:00 a.m. The record is devoid of evidence that defendant created or was aware of the icy condition on the sidewalk with sufficient time to correct it, or that the condition existed long enough that defendant should have been aware of its existence. Plaintiff testified at his deposition that prior to falling, he did not see any ice at the site of the accident, nor did he observe any other ice or snow on the ground.

“[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 plaintiffs 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 plaintiffs after-the-fact explanation of the accident. This case is factually distinguishable from Powell v MLG Hillside Assoc. (290 AD2d 345 [2002]). In that case, the landlord had actual notice that the hazard existed, since there was visible snow on the ground, which, approximately an hour after cessation of the storm, he had sought to have the custodian remove, and the interim between the end of the storm and the accident was longer. Concur—Friedman, Nardelli, Williams and Freedman, JJ.