Argued September 16, 2003; decided October 23, 2003

Garricks v City of New York, 300 AD2d 247, reversed.

Opinion by Graffeo, J.

In this negligence action arising from plaintiff's fall on an icy sidewalk, defendant City of New York appeals from an Appellate Division order that affirmed a jury verdict in plaintiff's favor. Because we conclude that the City was erroneously precluded from presenting relevant evidence regarding the reasonableness of its response to the snowstorm, we reverse and remit for a new trial.

Plaintiff Beverly Garricks was injured when she slipped and fell on an ice-covered sidewalk near her home in the Bronx. [*2]She commenced this personal injury action against the City and the owners of the property abutting the sidewalk where her accident occurred. After plaintiff obtained a default judgment against the property owners, the case against the City proceeded to trial.

Plaintiff presented evidence that at approximately 9:00 a.m. on February 6, 1995, she was walking on a sidewalk accompanied by her two children. Over 10 inches of snow had fallen on February 4, 1995 and, during the two days following the storm, average temperatures were below freezing with wind speeds averaging between 18 and 21 miles per hour. As plaintiff approached the curb to cross the street, she slipped and fell, fracturing her elbow. Plaintiff described the condition of the sidewalk where she fell as covered with hard, thick ice with no cleared path and no salt or sand on the surface.

The City contended at trial that its snow removal efforts following the February 4 storm were reasonable. In order to address public safety, traffic and commerce needs, the City claimed that it prioritized municipal snow removal efforts into three phases: main highways and arteries were cleared first, then streets with bus stops and streets that connect residential areas with main roads and, finally, residential streets. Crosswalk cleaning, which involved the manual shoveling of crosswalks, hydrants and bus stops, was generally not undertaken until completion of snow removal from roadways.

The City offered testimony that its snow removal operations in response to the storm began on February 4 and continued through February 10, 1995. The snow removal district that encompassed the area where plaintiff fell included 308 miles of plow routes and 635 crosswalks. The sanitation supervisor who oversaw operations for this district stated that, during the three days from February 4 to February 6, the City deployed all available workers and equipment, including salt spreaders, plows and front-end loaders. In addition, temporary workers were hired for crosswalk clearing. Streets in all three phases had been cleared by the early morning hours of February 5 (at least 24 hours before plaintiff's sidewalk accident) and work on the crosswalks was ongoing.

When the City's counsel attempted to question the sanitation supervisor about Administrative Code of the City of New York § 16-123, which imposes a duty on landowners to clear snow from sidewalks abutting their property, Supreme Court sustained [*3]plaintiff's objection and a sidebar discussion ensued.^[FN1] The court subsequently reiterated that it sustained the objection.

At the close of proof, the trial court reserved decision on the City's motions for dismissal of plaintiff's complaint and for a directed verdict. The City renewed its request to submit Administrative Code evidence at the charge conference, indicating that it had intended to elicit testimony to support its position that the ordinance and the City's necessary reliance on property owners were relevant facts for the jury to consider in assessing the reasonableness of the City's response. Because it had been unable to offer proof on this issue, the City asked the court to take judicial notice of section 16-123 and inform the jury of its existence. The City further urged that its sole purpose in seeking introduction of the evidence was related to the reasonableness question and suggested that the court issue a limiting instruction to that effect. The court declined the City's request.

The jury returned a verdict finding the City negligent and awarding plaintiff $50,000 for past pain and suffering, $450,000 for future pain and suffering and $7,800 for lost earnings. The court denied the City's motion to dismiss or to set aside the verdict as against the weight of the evidence, holding that the testimony presented a question of fact for jury determination as to the reasonableness of the City's response time and efforts. The court concluded, however, that the award was excessive and ordered a new trial on damages for future pain and suffering unless plaintiff stipulated to a reduction of those damages to $250,000. Plaintiff so stipulated and judgment was entered. A divided Appellate Division affirmed and the City now appeals as of right based on a two-Justice dissent.

In this Court, the City argues that the trial court committed reversible error when it refused to permit the jury to consider the duty of property owners to remove snow and ice from [*4]abutting sidewalks in determining reasonableness. The City acknowledges that the Administrative Code provision does not extinguish its obligation to maintain the sidewalks but contends that its reliance on property owners' compliance with the ordinance was a relevant factor for the jury to weigh in assessing whether the City was liable.^[FN2]

Courts have long recognized that where a municipality has enacted an ordinance requiring abutting landowners to remove snow from sidewalks "it may, before taking any action itself, wait a reasonable time for them to perform their legal duty" (Valentine v City of New York, 86 AD2d 381, 387 [1st Dept 1982], affd 57 NY2d 932 [1982]; see Candelier v City of New York, 129 AD2d 145 [1st Dept 1987]; Taylor v City of Yonkers, 105 NY 202 [1887]). Of course, such an ordinance does not relieve the municipality of its obligation to maintain sidewalks in a reasonably safe condition and, where property owners fail to comply with the ordinance within a reasonable time, the municipality must either enforce the ordinance or undertake the necessary work itself (see Taylor, 105 NY at 205-206; see also Smith v City of New York, 282 App Div 495 [1st Dept 1953], affd 307 NY 843 [1954]; Yonki v City of New York, 276 App Div 407 [1st Dept 1950], appeal dismissed 303 NY 852 [1952]). Evidence of a municipality's reliance on property [*5]owners to perform this duty and of its efforts to enforce the ordinance within a reasonable time is relevant in determining whether the municipality breached its duty (see Smith, 282 App Div at 496; Yonki, 276 App Div at 409-410; see also 1B NY PJI3d 1143 [2003] [municipality's efforts to enforce such a provision are relevant to determine whether it has acted with reasonable care]).

Here, the trial court precluded the City from introducing testimony as to the existence of the ordinance, the City's enforcement measures or its reliance on property owners as part of its snow removal response plan. Had such evidence been admitted, it would have been proper for the jury, charged with applying the standard of care and deciding whether the City was reasonable, to consider the ordinance and whatever efforts the City undertook in relation to the ordinance in reaching its verdict. In this case, such evidence, if offered in support of the City's theory that its response to the storm was reasonable, could have affected the outcome of the trial and exclusion of the evidence was not, therefore, harmless error (see Marine Midland Bank v Russo Produce Co., 50 NY2d 31, 43 [1980]; Kuci v Manhattan & Bronx Surface Tr. Operating Auth., 219 AD2d 486, 487 [1st Dept 1995], affd 88 NY2d 923 [1996]). Hence, reversal is warranted.

The City further contends that it was entitled to a directed verdict dismissing plaintiff's complaint. We disagree. On this record, we cannot say that plaintiff's evidence was insufficient to raise an issue of fact for the jury (see Campbell v City of Elmira, 84 NY2d 505, 509-510 [1994]; Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]).

Accordingly, the order of the Appellate Division should be reversed, with costs, and a new trial ordered.

Chief Judge Kaye and Judges G.B. Smith, Rosenblatt and Read concur; Judge Ciparick taking no part.

Order reversed, etc.