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THE LANDOWNER ABUTTNG A SIDEWALK IN NYC HAS A NONDELEGABLE DUTY TO MAINTAIN THE SIDEWALK; HERE THE LANDOWNER FAILED TO DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF ICE AND SNOW ON THE SIDEWALK BECAUSE IT DID NOT AVER WHEN THE SIDEWALK WAS LAST INSPECTED OR CLEANED PRIOR TO THE SLIP AND FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant landowner’s motion for summary judgment in this sidewalk ice and snow slip and fall case should not have been granted. The landowner failed to demonstrate it did not have constructive notice of the presence of snow and ice:

Section 7-210 of the Administrative Code of the City of New York imposes a nondelegable duty on certain landowners, which includes 149-53 14th Avenue, LLC, to maintain sidewalks abutting their land, including the removal of snow and ice …  “[T]he duty applies with full force notwithstanding an owner’s transfer of possession to a lessee or maintenance agreement with a nonowner” … . Landowners, however, are not strictly liable for all personal injuries that occur on the abutting sidewalk, as “section 7-210 adopts a duty and standard of care that accords with traditional tort principles of negligence and causation” … .

“A defendant property owner moving for summary judgment in an action predicated upon the presence of snow or ice has the burden of establishing, prima facie, that it neither created the snow or ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition” … .  “A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it” … . “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the defendants failed to establish, prima facie, that 149-53 14th Avenue, LLC, did not have constructive notice of the alleged snow and ice condition that caused the plaintiff to fall. The evidence submitted by the defendants failed to establish when the sidewalk was last cleaned or inspected relative to when the plaintiff fell … . Marinis v Loschiavo, 2024 NY Slip Op 05970, Second Dept 11-27-24

Practice Point: Pursuant to the NYC Administrative Code a landowner abutting a sidewalk has a nondelegable duty to maintain the sidewalk, which includes removal of ice and snow. The landowner can demonstrate it did not have constructive notice of the presence of ice and snow by proof the sidewalk was inspected or cleaned close in time to the slip and fall, not the case here.

 

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