Legal arguments to show the homeowner made a special use of the sidewalk

Introduction

In a series of recent blog posts, found here and here, the attorneys at Martin + Colin, P.C. brought to your attention a new appeals court ruling which discussed the “special use” exception which imposes homeowner liability in slip and fall cases. In the legal papers reproduced below, we shared a recent legal analysis of “special use” and homeowner liability which we made on behalf of a client. This sample legal brief should help you get a better understanding of the liability which can arise when your driveway crosses over the public sidewalk.

Legal Arguments Submitted on Behalf of the Injured Client

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER

————————————————————————-x

MAURA CARNICELLI, Plaintiff,

                   -against-   

JOAN DOOCY,   Defendant.  

————————————————————————-x

Harald Brown, an attorney duly admitted to practice before the Courts of the State of New York, affirms the following under penalties of perjury:

I am an attorney with Martin + Colin P.C., attorneys of record for plaintiff MAURA CARNICELLI, in the above-entitled action and as such, I am fully familiar with the facts and circumstances of the case.

This affirmation is respectfully submitted in opposition to the defendant’s untimely motion for summary judgment dismissing the action.

DEFENDANT’S MOTION IS UNTIMELY

As the Court of Appeals has made very clear: “ . . . court-ordered time frames are not options, they are requirements, to be taken seriously by the parties” (Miceli v. State Farm Automobile Insurance Company, 3 NY3d 725 [2004]).  In Brill v. City of New York, the Court of Appeals reversed a grant of summary judgment to the defendant City of New York on a sidewalk case, like this one, because the defendants made the motion too late, and without any offer of good cause for the delay.  The Court’s reasoning: “[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity.”  Brill v. City of New York, 2 NY3d 648 (2004) citing Kihl v. Peffer, 94 NY2d 118, 123 (1999).

In this action, a Trial Readiness Order was signed by Hon. Jane Marlow on January 30, 2018, well over a year ago.  That Order specifically stated that any motion for summary judgment must be filed within forty five days following the filing of the Note of Issue.  (Trial Readiness Order filed January 31, 2018 annexed hereto as Exhibit “1”).  The Note of Issue was filed on February 19, 2018.  At no time during the forty five days immediately following the filing of the Note of Issue in February 2018 did the defendant file a motion for summary judgment.  Thus, the time for defendant to file a motion for summary judgment expired over a year ago.  The current motion is untimely and must be summarily denied.

After the Note of Issue was filed in 2018, plaintiff needed a second shoulder surgery.  Subsequently, by decision dated August 13, 2018, the Hon. Jane Marlow vacated the Note of Issue for the sole purpose of: “additional discovery with respect to [plaintiff’s additional shoulder] surgery.”  (Decision and Order filed August 14, 2018 annexed hereto as Exhibit “2”).  Thus, all subsequent court proceedings from that date, until today, are “limited to plaintiff’s shoulder surgery occurring on June 27, 2018.”  Thus, even though another Note of Issue was subsequently filed in January 2019, the 2019 Note of Issue did not resurrect the long expired time period within which the defendant could move for summary judgment on liability.  Thus, the current motion is untimely and must be summarily denied.

DEFENDANT IS NOT ENTITLED TO SUMMARY JUDGMENT

This Court Should Not Reach the Merits of Defendant’s Motion

I must now address the substantive issues raised in the defendant’s motion.  However, this Court should not reach these issues.  Deadlines should be enforced as deadlines.  The fact that I am now about to discuss substantive issues does not mean that this Honorable Court should also address substantive issues.  Instead, the defendant’s motion should be denied summarily, as untimely, and no consideration should be given to the substantive issues.[1] 

THREE SEPARATE LEGAL GROUNDS FOR HOMEOWNER LIABILITY EXIST

As a general common law rule, “[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 . . . except 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. . .” (O’Toole v. City of Yonkers, 107 AD3d 866, 867 [2d Dept. 2013]; Campos v. Midway Cabinets, Inc., 51 AD3d 843, 844 [2d Dept. 2008]).  As will be demonstrated below, the defendant does indeed have liability in this case under at least two of the three exceptions to the general rule.

The Defendant Created the Condition / Negligently Made Repairs

Plaintiff sustained injuries as a result of slipping and falling upon a snowy portion of the sidewalk in front of the driveway of the premises located at 1313 Tiburon Road in Yonkers on January 12, 2016. It is undisputed that the defendant owned the abutting premises.  It is well settled that the adjoining property owner may “be held liable in tort for the damages alleged if snow and ice removal efforts by her or on her behalf made the sidewalk more hazardous” (Martinez v. City of New York, 20 AD3d 513 [2d Dept. 2005], citing Klotz v. City of New York, 9 AD3d 392 [2d Dept. 2004]).

Here are some of the relevant facts.  The plaintiff, Ms. Carnicelli, has resided at 1303 Tiburon Road, Yonkers, New York for over 25 years (See EBT of Maura Carnicelli, at pg. 7, l. 18-24, annexed to the defendant’s moving papers as Exhibit “E”).  Defendant Joan Doocy was the owner of 1313 Tiburon Road, Yonkers, New York 10705 but did not live there (Ex. E at pg. 18, l. 13-23).  She rented the home to people who were not family members (Ex. E at pg. 18, l. 13-23).  In Ms. Carnicelli’s deposition she recalled that the snow storm began Friday, January 10, 2016 in the evening and ended on Saturday, January 11, 2016.  It was a significant snow storm. (Ex. E at pg. 22, l. 23-25 & pg. 23, l. 1-5)  In the defendant’s deposition, she testified that one of her tenants was responsible for the clearing of the sidewalk of snow pursuant to a verbal agreement. (See EBT of Joan Doocy, at pg. 18, l. 20-25, annexed to the defendant’s moving papers as Exhibit “G”).  

Ms. Carnicelli left her home on Monday, January 12, 2016 at approximately 5:00 p.m. to collect a neighbor’s mail and feed her cat while she was away (Ex. E at pg. 38, l. 14-15)  It was Monday, January 12, 2016, almost two full days after the snow storm.  Ms. Carnicelli was exercising due care by wearing snow gear, snow boots and a snow suit (Ex. E at pg.58, l. 7-11).  Ms. Carnicelli was exercising due care as she was watching where she was walking (Ex. E at pg.56, l. 4-5).  Ms. Carnicelli walked out of her home at 1303 Tiburon, walked past four other homes, including the defendant’s home at 1313 Tiburon, and arrived at 1317 Tiburon Avenue to collect the neighbor’s mail and feed her cat.  At all times Ms. Carnicelli remained on the same side of the street.  Ms. Carnicelli testified that on her way to the neighbor’s house she first passed the defendant’s home, at 1313 Tiburon Avenue, and then passed the defendant’s driveway (Ex. E at pg.43, l. 13-23).  Ms. Carnicelli arrived at the neighbor’s house safely without having to cross the street as the house was on the same side as Ms. Carnicelli’s home (Ex. E at pg. 40, l. 20-25; pg. 41, l. 1-9).  

On her walk back to return to her own home, Ms. Carnicelli was walking on the sidewalk adjacent to the defendant’s property.  Ms. Carnicelli had walked half way past the defendant’s driveway when Ms. Carnicelli slipped and fell as a result of the snow condition on the sidewalk (Ex. E at pg. 22, l. 10-16).  At her deposition, Ms. Carnicelli described the area where she was caused to slip and fall.  She testified that she was approximately half way across the driveway in the path that had been cleared on the sidewalk.  Ms. Carnicelli testified that although a path had been cleared, the sidewalk was still covered in snow and she was unable to see the black top or concrete where she slipped and fell (Ex. E at pg. 61, l. 17-25 and pg. 62, l. 2- 10).  Ms. Carnicelli testified that on the sidewalk, a path had been created, which might have been created by someone attempting to shovel, or might have been created by everyone walking there.  She was not sure (Ex. E at p. 46, l. 16-25).  However, Ms. Carnicelli also testified that there were higher piles (or mounds) of snow on either side of the sidewalk as if someone had tried to clear it by shoveling (Ex. E at pg.47; pg. 48, l. 1-9)  Ms. Carnicelli also testified that the sidewalk adjacent to defendant’s driveway had had much more snow on it than the sidewalk adjacent to defendant’s home and she could see tire tracks from cars coming in and out of the active driveway at 1313 Tiburon Avenue (Ex. E at pg.48, l. 10-25; pg. 49, l. 1-2)  Ms. Carnicelli did not observe any evidence of salt or ice melt on the sidewalk at 1313 Tiburon Avenue (Ex. E at pg.52, l. 10-14).  The sidewalk in front of 1313 Tiburon Avenue was covered with snow there was no visible concrete (Ex. E at pg.53, 21-25).

Ms. Carnicelli testified that she had walked on the sidewalk about half way past the driveway when she slipped and fell (Ex. E at p. 67).  She testified that her left foot slipped out from underneath her and she fell to the ground (Ex. E at p. 68).  Ms. Carnicelli injured her shoulder as a result of her fall on January 12, 2016 (Ex. E- see pg.72, 3-11) Ms. Carnicelli testified that Victoria Hanson, another neighbor, later told Ms. Carnicelli that the people who rent the home at 1313 Tiburon Avenue rarely clean up, shovel or plow the sidewalk. (Ex. E- see pg.95, 10-18)

Plaintiff testified at her deposition that, after she slipped on the snow, she returned home, was in terrible pain, and that sometime later, she returned to the scene and took a few photos.  These two photos show the location of plaintiff’s slip and fall.  One photo, Exhibit A, was taken while standing on the sidewalk, looking toward the cat house.  The other photo, Exhibit B, was taken from the street at the end of the driveway.

The use of a sidewalk as a driveway “constitutes a special use” (Katz v. City of New York, 18 AD3d 818, 819; see Nunez v. City of New York, 41 AD3d at 678; Breger v. City of New York, 297 AD2d at 771).  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” (Katz v. City of New York, 18 AD3d at 819, quoting Breger v. City of New York, 297 AD2d at 771; see Adorno v. Carty, 23 AD3d 590, 591).

Thus, plaintiff’s testimony, together with her photographic evidence, made out a prima facie case establishing adjacent homeowner liability on a second, independent, legal basis because the homeowner made a “special use” of the sidewalk adjacent to her driveway.  The defendant was using that portion of the sidewalk where the plaintiff fell as part of her driveway.  After the defendant’s tenant shoveled the snow off the sidewalk, as the defendant requested, the tenants who reside in the house drove their cars out of the driveway and over the sidewalk.  Doing this caused the snow to push back over the sidewalk directly in front of the driveway, creating the snowy condition where the plaintiff fell.  The snow pushed back onto the sidewalk by the tenant’s car tires created the snowy, slushy condition that caused the plaintiff to fall.  This is precisely how an adjacent property owner makes a “special use” of the sidewalk as part of her driveway.  Therefore, to make a “special use” of that section of the sidewalk created liability for the property owner.  As is clear from the photographs above, that portion of the sidewalk adjacent to the driveway: was not entirely clear of snow; had tire tracks across the sidewalk; and had snow pushed from the driveway back onto the sidewalk.  It is also clear that the sidewalk adjacent to the defendant’s driveway contains much more snow that the sidewalk adjacent to the defendant’s home.  The area where the driveway and sidewalk met looked much more unclean and unkept.  All of this is compelling evidence, in support of plaintiff’s claim, that defendant is liable for the condition of the sidewalk because of the defendant’s “special use” of this portion of sidewalk as a driveway.

Having established a prima facie case of negligence, it is equally well established that it is the defendant’s burden to establish that the defendant did nothing to create the defect (Campos v. Midway Cabinets, Inc., supra, 51 AD3d 843, 844 [2d Dept. 2008].

However, the defendant has not established that she did nothing to create the defect.  In fact, on the contrary, it is clear that the defendant’s tenants created the dangerous condition by driving over the sidewalk and pushing snow back onto the sidewalk, making the sidewalk more dangerous for pedestrians.

In addition, the plaintiff’s have disclosed a liability expert, and provided an expert report, and an expert affidavit (annexed hereto as Exhibit “3”).  Please note that page 23 of the plaintiff’s expert disclosure, contains an affidavit affirming the truthfulness of the expert’s report.  The expert, an engineer, attributes the cause of Ms. Carnicelli’s slip and fall to the improper removal of snow (Ex. 3, at p. 17).

Thus, it was the defendant’s burden to demonstrate that she did not create or render more hazardous the snow condition of the sidewalk.  And she did not do so.  In fact, all the evidence supports the plaintiff’s contention that the defendant’s special use of the sidewalk as a driveway is precisely what caused Ms. Carnicelli to slip and fall.  At her EBT, the defendant even acknowledged that the sidewalk in the photograph appeared shoveled with some slush remaining (Ex. G at p. 56, Line 7).  By shoveling the snow into the driveway, where it was then pushed back onto the sidewalk by the tenants, Doocy’s tenant created the specific snowy condition that caused plaintiff to slip and fall.

Thus, the motion must be denied.  The case must be submitted to a jury.

Defendant Also Threw Several Unrelated Objections Against the Wall in the Hope that Something Would Stick

In her motion, the defendant also raised a hodgepodge of other defenses.  All are ridiculous.  First, defendant claimed no notice of any dangerous condition.  But we all know that no notice is required if you created the defect, and the theory set forth above is, of course, that the adjacent homeowner created the defect.  Second, defendant also claimed tenant had exclusive control over the sidewalk.  But that too is ridiculous.  It is undisputed that one of the tenants agreed to remove the snow from the sidewalk at the defendant landlord’s request, not for some special and unusual benefit to the tenant.  Rather, based on the undisputed facts here, both the tenant and the landlord have joint and several liability to the plaintiff.  And there is no requirement that the landlord have exclusive possession of the “special use” portion of the sidewalk for the landlord to have liability (see, Kaufman v. Silver, 90 NY2d 204 [1997]).  Third, defendant also argued that the condition of the sidewalk was not defective or dangerous. However, the plaintiff’s testimony, the plaintiff’s photographs, and the plaintiff’s expert affidavit raise an issue of fact as to whether defendant created a dangerous and/or defective snow condition on the sidewalk and driveway.  It is a question for the jury whether the condition was dangerous or defective.  Fourth, defendant also claimed that snow removal was not her liability.  However, under Yonkers City Code, as the owner of the house, it was her duty to keep the sidewalk in front on the premises owned or occupied by her clear and clean from snow, ice and debris.  This is further explained in the Bergen Engineering report attached as Exhibit “3.”

In short, more than two full days after the snowfall, there should have been a clear sidewalk adjacent to the driveway.  The snow on the sidewalk and driveway at the premises located at 1313 Tiburon Road was a dangerous condition and was the sole proximate cause of the plaintiff’s injuries.

WHEREFORE, for the foregoing reasons, it is respectfully requested that the defendant’s motion be denied in its entirety, and that this Court grant such other and further relief as this Court may deem just and proper.

Dated: White Plains, New York

 March 27, 2019

                                                Yours, etc.

                                                MARTIN + COLIN, P.C.

                                                Attorneys for Plaintiff

                                                ______________________________

                                                By:  HARALD BROWN

[1]   Incidentally, these opposition papers are timely.  The Court’s 2018 Trial Readiness Order states that, with any motion for summary judgment, plaintiff gets thirty days to oppose.  These papers are filed within 30 days of the making of the motion.