On March 3, 2015, the First Department unanimously overturned the trial court’s denial of defendant’s summary judgment motion and dismissed all plaintiff’s claims.  In Kenny vs.Glaser, plaintiff claimed that he slipped and fell on ice in front of defendants’ home in upper Manhattan.  However, the record demonstrated that the homeowner had done a reasonable job clearing snow and ice from her sidewalk before the accident.  The homeowners had two contractors clear the sidewalk of snow and ice and put down salt and sand on the morning of the accident.In addition, plaintiff was unable to testify with any detail about the ice, and so was unable to demonstrate how the homeowners exacerbated the natural hazard.  The trial court denied our motion for summary judgment, but we appealed to the First Department.

The First Department held that defendants made a prima facie showing that they were exempt from liability for any failure to remove snow and ice under Administrative Code §7-210(b) as their home was owner occupied and used exclusively for residential purposes.

In rebuttal, plaintiff essentially made a res ipsa loquitor argument, implying that that the fall itself was evidence of the homeowners’ negligence.  The standard in New York, however, requires proof that the homeowners’ snow removal efforts worsened the natural hazard created by snow or ice.  The First Department agreed with our position, reversed the trial court and dismissed plaintiff’s complaint.

Hopefully our discussions of snow and ice are now finished until next winter.  Steve Kaye, Brian Gibbons and Mike Bono prepared the appeal, and Brian Gibbons argued the appeal before the First Department.  Thanks to Anne Henry for her contribution to this post, and please email Brian Gibbons with any questions.