The judge agreed with us that the homeowner made a special use of the driveway

The Full Decision and Order of the Court:  

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER

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MAURA CARNICELLI,

     -against-                                                      DECISION AND ORDER

JOAN DOOCY, 

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MARLOW, J.

  The following papers were considered in connection with defendant’s motion pursuant to CPLR 3212 for summary judgment dismissing the complaint:

Papers

Notice of Motion, Affirmation, Exhibits A – H

Affirmation in Opposition, Exhibits 1 – 3

Reply Affirmation

   This personal injury action arises from plaintiff Maura Carnicelli’s alleged slip and fall on January 12, 2016, between 5:00 and 6:00 pm, on slushy snow on the sidewalk in front of the two-family home located at 1313 Tiburon Road in Yonkers, New York, which property is owned by defendant Joan Doocy and rented out by her to tenants.

   In moving for summary judgment, defendant Joan Doocy contends that (1) the complained of “slushy snow” is not a hazardous condition (see Wheeler v Grande Wie, 31 AD3d 992 [2d Dept. 2006]), (2) she owes no duty to plaintiff, and did not assume such a duty, and (3) there was no notice of the condition as a matter of law.

   Plaintiff opposes the motion, arguing first that the motion is untimely, and second that issues of fact preclude summary judgment.

       Analysis

   Initially, plaintiff’s suggestion that this motion is untimely must be rejected.  Although no summary judgment motion was filed by defendants after the first note of issue, the more recent trial readiness order, filed on December 24, 2018, explicitly allowed summary judgment motions within 45 days of the filing of a new note of issue.

   Defendant has not established that, as a matter of law, the complained-of “slushy snow” is not a hazardous condition. The absence of a claim that ice was present is not dispositive; slushy snow can also present a slipping hazard.

   Nor has defendant shown that she has no duty toward plaintiff as a matter of law. While “[a]n owner or occupier of land which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition, and liability may not be imposed upon it for injuries sustained,” there is an exception “where the abutting owner or lessee either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the owner or lessee the obligation to maintain the sidewalk which imposes liability upon that party for injuries caused by a violation of that duty” (O’Toole v City of Yonkers, 107 AD3d 866,867 [2d Dept 2013] [citations and internal quotation marks omitted]; Campos v Midway Cabinets, Inc., 51 AD3d 843, 844 [2d Dept 2008]).

   Here, the applicable ordinance does not impose tort liability (see Code of the City of Yonkers 103-8; Marx v Great Neck Park Dist., 92 AD3d 925, 926 [2d Dept 2012]).  However, a question of fact is presented as to whether “snow and ice removal efforts by [defendant] or on her behalf made the sidewalk more hazardous” (see Martinez v City of New York, 20 AD3d 513 [2d Dept 2005] (emphasis added]).  Defendant testified that one of her tenants was responsible for the clearing of the sidewalk of snow pursuant to a “verbal” agreement.  Such an alleged oral arrangement does not free defendant of all possible liability; on the contrary, she may be liable for snow-clearing efforts of her tenant on her property, if those efforts rendered the sidewalk more hazardous.

   As the party seeking summary judgment, defendant has the burden of demonstrating her entitlement thereto as a matter of law (see Sutherland v Whylie, 292 AD2d 518, 518 [2d Dept 2002]). Defendant’s submissions on the present motion fail to preclude the possibility that the sidewalk was made more hazardous by her tenant’s snow removal efforts.

   Furthermore, the exception for owner liability based on special use cannot be eliminated as a matter of law here. “The use of a sidewalk as a driveway ‘constitutes a special use'” (Campos v Midway Cabinets, Inc., 51 AD3d 843, 844 [2d Dept 2008], quoting Katz v City of New York, 18 AD3d 818, 819 [2005]).  “Where a defect that causes an accident occurs in a part of the sidewalk which is used as a driveway, the abutting landowner, on a motion for summary judgment, bears the burden of establishing that he or she did nothing to either create the defective condition or cause the condition through the special use of the property as a driveway” (Campos, supra at 844 [internal quotation marks and citation omitted]).  Plaintiff testified that the location where she slipped was approximately halfway across the driveway, and that although a path had been cleared, the sidewalk was still covered in snow and she was unable to see the blacktop or concrete at the location of her fall.  She stated that the sidewalk adjacent to the driveway had much more snow on it than the sidewalk adjacent to the rest of the property, and she submitted photographs showing tire tracks from vehicles going up or down that driveway, indicating that snow had been pressed and moved by the tires.

   Finally, defendant also claims that notice is lacking as a matter of law. However, notice is not required if the property owner, or her agents, created the condition (see Buroker v Country View Estate Condominium Assn., 54 AD3d 795, 795 [2d Dept 2008]), as is alleged here.

   Accordingly, it is hereby

ORDERED that defendant’s motion for summary judgment dismissing the complaint is denied; and it is further

ORDERED that the parties are directed to appear in the Settlement Conference Part on Tuesday, July 30, 2019 at 9:15 a.m” at courtroom 1600 of the Westchester County Courthouse located at 111 Dr. Martin Luther King Jr. Boulevard, White Plains, New York, 10601.

This constitutes the Decision and Order of the Court.

Dated: White Plains, New York

            June 20, 2019                     _________________________

                                                        HON. JANE MARLOW, J.S.C.