In this personal injury action, defendant Rey Sun Realty, LLC (Rey Sun) moves for summary judgment dismissing the plaintiff's complaint as against it. Plaintiff and defendant New York City Transit Authority (NYCTA) oppose the motion.

In this action, plaintiff alleges that, on January 11, 2009 at 2:00 p.m., she slipped and fell on black ice on the sidewalk in front of 1635 Lexington Ave between East 103rd Street and East 104th Street in Manhattan. At her deposition, plaintiff testified,

"It was — I slipped on the sidewalk on over — the grates that were in front of me. There was a vacant lot there.

Q:Do you recall what time you woke up that morning on the 11th?

A:Counterclockwise [sic] I'm up at 6:30, 7.

Q:Do you recall what day of the week your accident occurred on?

A:Sunday.

Q:When you left your apartment at 1:40 p.m., what were the weather conditions like?

A:It was cold outside.

Q:When you first left your building, did you notice whether or not the sidewalk or roadways appeared to be wet in any manner?

A:No.

Q:I'm sorry, no you did not notice or no, they were not wet?

A:No, they weren't wet.

Q:Do you know whether or not it had rained or snowed at any time on the day of your accident prior to your leaving your building?

A:No.

Q:Again, no you don't know whether or not it rained or snowed or it did not rain or snow, to the best of your knowledge, on the date of your accident?

A:No, it didn't.

Q:When you slipped, did your right foot slip, did your left foot slip or both?

A:My right foot slipped. [*2]

Q:When your right foot slipped, can you tell me what distance separated your right foot from the grate?

A:Like how many —

Q:How many inches, feet, something else?

A:Three.

Q:I just want to clarify for the record. Your right foot was three inches from the grate when your accident occurred?

A:Uh-huh.

(Locke Affirm. Ex. F [Perry EBT], at 9-11, 32-33.)

The standards for summary judgment are well-settled.

"On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. Summary judgment is a drastic remedy, to be granted only where the moving party has tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact, and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action. The moving party's [f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers."

(Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal citations and quotation marks omitted].)

Defendant Rey Sun argues that summary judgment should be granted in its favor because: (1) it did not owe a duty to plaintiff to maintain the area where plaintiff allegedly fell; (2) it did not cause or create the black ice condition; and (3) it did not have prior notice of the condition. Plaintiff and defendant NYCTA both oppose the motion. The NYCTA asks the Court to search the record and grant it summary judgment dismissing the action as against it.

The first issue presented is whether the duty to clear snow and ice from the area where plaintiff fell was the responsibility of defendant Rey Sun, as the abutting owner of the sidewalk, by virtue of Administrative Code § 7-210, or the responsibility of defendant NYCTA, by virtue of 34 RCNY § 2-07.

34 RCNY § 2-07(b) states, "the owners of covers or gratings shall replace or repair any cover or grating found to be defective and shall repair any defective street condition found within an area extending twelve inches outward from the perimeter of the cover or grating." Rey Sun contends that because plaintiff allegedly fell within twelve inches of the subway grate, the NYCTA, as the owner of the grate at issue, had a duty to clear snow and ice from the area where plaintiff allegedly fell.

"On September 14, 2003, with the passage of § 7—210 of the Administrative Code of the City of New York, the duty to maintain and repair public sidewalks, within the City of New York, and any liability for the failure to do so, was shifted, with certain exceptions, to owners, whose property abuts the sidewalk. Accordingly, owners of nonexempted properties must now keep the sidewalks abutting their properties in a reasonably safe condition, much in the same way they are obligated to maintain their respective [*3]premises."

Contrary to Rey Sun's argument, 34 RCNY § 2-07 (b) does not impose a duty upon the owner of a grate to remove snow and ice on a grate, or in the area within twelve inches of a grate. Rather, 34 RCNY § 2-07 (b) (2) requires the owner of a grate to "repair any defective street condition found within an area extending twelve inches outward from the perimeter of the cover or grating."

In the American Heritage Dictionary, an accepted authority for the plain and ordinary meaning of words for statutory construction (see Fleming v Graham, 10 NY3d 296 [2008] [citing the American Heritage Dictionary's definition of "severe"]), the word "repair" is defined as "to restore to sound condition after damage or injury; fix." Removal of snow and ice on a sidewalk within twelve inches of a grate does not involve restoration after damage or injury. Thus the plain and ordinary meaning of "repair" in 34 RCNY § 2-07 (b) (2) should not be construed to include snow and ice removal.

34 RCNY § 2-07 (b) (1) makes owners of grates responsible "for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware." However, the word "condition" should be construed in connection with 34 RCNY § 2-07 (b) (2), which, for the area within twelve inches of a grate, imposes only a duty of repair. (See McKinney's Cons Laws of NY, Book 1, Statutes §239 ["words employed in a statute are construed in connection with, and their meaning is ascertained by reference to the words and phrases which they are associated"].)

Cruz is consistent with this construction of 34 RCNY § 2-07 (b), that the duty of the owner of the grate to maintain the twelve inches around the grate applies only to structural defects in the area surrounding the grate. In Cruz, the Appellate Division, First Department ruled that the NYCTA was responsible for a raised corner of a sidewalk near a metal grating owned by the NYCTA.

In Hurley, the Appellate Division, First Department ruled that, under 34 RCNY § 2-07 (b), Con Edison was responsible for a slippery condition, i.e. a non-structural defect, upon its grate, not the abutting property owner, citing Cruz. In Hurley, Luis Jusino, an employee of Con Edison, testified during his deposition that Con Edison received a complaint on the date of the incident at issue that the subject grate was "slippery and sometimes gives off a bad smell." (Record on Appeal in Hurley v Related Mgt. Co., 74 AD3d 648, at 232.) Jusino testified that when he inspected the vaults under the subject grate, "there was a foul smell [/] odor coming out of the vaults" and "they were dirty and they needed to be flushed out to be cleaned" (Id. at 229-230). He also testified that the dirt and water in the vaults was considered a condition that needed to be remedied. (Id. at 246). Thus, Hurley appears to impose a duty upon the owner of a grate to remedy non-structural hazards on a grate, in unusual circumstances where the condition seems to originate from the vault below the grate. [*4]

The Court has not found any cases where the duty imposed by 34 RCNY § 2-07 (b) was applied to non-structural defects in the area within twelve inches of a grate, such as snow and ice.

If abutting property owners were held to be under no duty under Administrative Code § 7-210 to remove snow and ice from the area of the sidewalks within twelve inches of a grate, then it is possible that property owners could shovel mounds of snow and ice onto grates and the twelve inch perimeter, which would create a hazard on or around the grates. Conversely, owners of grates and covers (such as manhole covers) would be required to remove snow and ice from grates and covers thereby encouraging the movement of the snow and ice onto abutting areas, which could create a hazard and lead to conflict with abutting property owners. Moreover, owners of grates and covers located in the street or within a crosswalk would be exposed to liability whether or not the City cleared snow and ice from these areas. Such an interpretation of Administrative Code

§ 7-210 would lead to absurd results, and therefore must be rejected. (McKinney's Cons Laws of NY, Book 1, Statutes §145 ["a construction which would make a statute absurd will be rejected"].)

Therefore, the Court rejects Rey Sun's argument that the responsibility for maintaining the area where plaintiff allegedly fell was the responsibility of the NYCTA under 34 RCNY § 2-07 (b).

In any event, an issue of fact arises as to whether Rey Sun assumed responsibility of snow and ice removal of the area where plaintiff allegedly fell. Anthony Reynoso, a former employee of Rey Sun, testified during his deposition that he hired and instructed someone to "shovel and to lay down salt, to make sure the sidewalk was clear [and] clean." (Bando Affirm. Ex. 4 [Reynoso EBT], at 23.)

Pursuant to CPLR 3212 (b), the Court searches the record and grants summary judgment to NYCTA. As discussed above, the NYCTA did not have a duty under 34 RCNY § 2-07 to remove snow and ice in the area within twelve inches of its grate.

Rey Sun argues that, because NYCTA asked the Court to search the record and grant summary judgment in NYCTA's favor, NYCTA's opposition is essentially a late motion for summary judgment. This argument is without merit. CPLR 3212 (b) empowers the court, on a motion for summary judgment, to search the record, even if no one requests it by motion, cross motion, or in opposition papers. (See David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:23.)

As to the second issue presented, on a motion for summary judgment dismissing a cause of action pursuant to section 7-210, "a property owner has the initial burden of demonstrating that it neither created the defective condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it." (Garcia v City of New York, 99 AD3d 491, 492 [1st Dept 2012].) Rey Sun has not met its burden of entitlement to judgment as a matter of law. There is no testimony from Rey Sun of inspection of snow or ice removal before the alleged incident either earlier that day or even the previous day. (See Ross v Betty G. Reader Revocable Trust, 86 AD3d 419 [1st Dept 2011].)

Rey Sun argues that it had no duty to inspect the subject sidewalk or remedy the alleged condition as according to certified climatological data, precipitation was ongoing at the time of plaintiff's accident and a property owner's duty to take reasonable measures to remedy a condition [*5]caused by a storm is suspended while the storm is in progress and does not commence until a reasonable time after the storm has ended. (Lock Reply Affirm. ¶¶ 3, 7, 10; Bando Affirm. Ex. 5.) According to the certified climatological data, on January 11, 2009 between 1p.m. and 2 p.m., there was precipitation (Bando Affirm. Ex. 5), but the plaintiff alleges that it was not raining or snowing on that day (Perry EBT at 10-11), which makes this a question of fact for the jury.

Therefore defendant Rey Sun's motion for summary judgment is denied.

Accordingly, it is hereby

ORDERED that the motion for summary judgment of defendant Rey Sun

ORDERED that the complaint is severed and dismissed in its entirety as against defendant New York City Transit Authority, with costs and disbursements to said defendant as taxed by the Clerk of the Court, and all cross claims against this defendant are severed and dismissed, and the Clerk is directed to enter judgment accordingly in favor of said defendant. Dated: January 7, 2014New York, New YorkENTER: /s/ J.S.C.