Colon v. City of New York - Slip and Fall Action

New York Appellate Division

Filed March 3rd, 2026

Detected March 4th, 2026

Summary

The Appellate Division of the Supreme Court of the State of New York reversed a lower court's decision, denying a motion for summary judgment in a slip and fall case against Rita Marsicano. The court found that the defendant failed to establish freedom from common-law liability regarding an icy condition on her property.

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What changed

The Appellate Division of the Supreme Court of the State of New York, in the case of Colon v. City of New York, reversed a lower court's order that had granted summary judgment to defendant Rita Marsicano. The case involves a slip and fall action where the defendant claimed exemption from statutory liability under Administrative Code of the City of New York § 7-210(b) for owner-occupied residential property. However, the Appellate Division found that the defendant did not sufficiently demonstrate freedom from common-law liability, specifically concerning whether she created or exacerbated the icy condition by her special use of the sidewalk as a driveway.

This decision means the case will proceed to trial, as the defendant's motion for summary judgment was denied. Property owners in New York City who claim exemption from statutory liability under § 7-210(b) must also demonstrate they did not create or worsen hazardous conditions on their property, particularly if the property's use (like a driveway) could contribute to such conditions. Failure to do so can result in continued liability in civil litigation.

What to do next

Review property owner liability exemptions under Administrative Code of the City of New York § 7-210(b)
Assess common-law liability for hazardous conditions on residential properties, especially those with special uses like driveways

Source document (simplified)

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March 3, 2026 Get Citation Alerts Add Note

Colon v. City of New York

Appellate Division of the Supreme Court of the State of New York

Citations: 2026 NY Slip Op 01154
Docket Number: Index No. 34531/20; Appeal No. 5982; Case No. 2025-04794
Opinion
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Combined Opinion

Colon v City of New York (2026 NY Slip Op 01154)
| Colon v City of New York |
| 2026 NY Slip Op 01154 |
| Decided on March 03, 2026 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |

Decided and Entered: March 03, 2026
Before: Webber, J.P., Shulman, Higgitt, Rosado, Hagler, JJ.
Index No. 34531/20|Appeal No. 5982|Case No. 2025-04794|

*[1]Nereida Colon, Plaintiff-Appellant,

The City of New York, et al., Defendants, Rita Marsicano, Defendant-Respondent.**

Law Office of Melissa R. Perez, P.L.L.C., White Plains (Melissa R. Perez of counsel), for appellant.

Ahmuty, Demers & McManus, Albertson (Kevin Murtagh of counsel), for respondent.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered April 22, 2025, which granted defendant Rita Marsicano's motion for summary judgment dismissing the complaint as against her, unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated.

In this slip and fall action, defendant-respondent (defendant) established that she owned a "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes" and was thus exempt from statutory liability pursuant to Administrative Code of the City of New York § 7-210(b).

However, defendant was also required to establish freedom from common-law liability by demonstrating that she did not create or exacerbate the alleged icy condition (see Gilmartin v City of New York, 81 AD3d 411, 412 [1st Dept 2011]). Supreme Court should not have granted defendant's motion for summary judgment because defendant failed to establish prima facie that the condition was not created or exacerbated by her special use of the sidewalk as a driveway (see Prete v JJ Hoyt LLC, — AD3d &mdash, 2026 NY Slip Op 00458 [1st Dept 2026]). Defendant's testimony that she did not recall if anyone used her driveway during the year of the accident fails to refute plaintiff's argument that the existence of the driveway created or exacerbated the condition (cf. Trent-Clark v City of New York, 114 AD3d 558, 559 [1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 3, 2026