Petrocelli v Marrelli Dev. Corp.

[*1] Petrocelli v Marrelli Dev. Corp. 2005 NY Slip Op 52394(U) [21 Misc 3d 1135(A)] Decided on August 30, 2005 Supreme Court, Nassau County Martin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 30, 2005
Supreme Court, Nassau County

Frank Petrocelli, as the Administrator of the Estate of MICHAEL PETROCELLI., Plaintiff.

against

Marrelli Development Corp., THE HOLIDAY ORGANIZATION INC., THE TIFFANY AT WESTBURY CONDOMINIUM, ST. CHARLES HOSPITAL., Defendants.



001078/02



Spence & Davis, LLP

Attorneys for Plaintiffs

666 Old Country Road, Ste. 300

Garden City, NY 11530

Gould & Cimino, Esqs.

Attorneys for Defendants, Marrelli, Holiday & Tiffany

200 Madison Avenue

New York, NY 10016

Montfort, Healy, McGuire & Salley, Esqs. Attorneys for Defendant, St. Charles

1140 Franklin Avenue

P.O. Box 7677

Garden City, NY 11530

Flanzig & Flanzig, LLP

Attorneys for third-Party Defendant, North Country Tree Service & Landscaping, Inc.

323 Willis Avenue

Mineola, NY 11501

Daniel Martin, J.

Upon reading the papers submitted and due deliberation having been had herein, the motion by defendants/third-party plaintiffs, Marrelli Development Corp., The Holiday Organization, Inc. and The Tiffany at Westbury Condominium (herein collectively referred to as "Tiffany"), for an Order of this court, pursuant to CPLR 3212, granting summary judgment and dismissing the plaintiff's decedent's complaint and all cross-claims against it is denied.

The motion by defendants, Tiffany, for an Order of this court, pursuant to CPLR 3215, granting a default judgment against third-party defendant, North Country Tree Service & Landscaping, Inc. ("North Country") is granted.

On December 30, 2000, at approximately 4:30 p.m., plaintiff's decedent, Michael Petrocelli, allegedly slipped and fell in a parking lot owned by the defendant, The Tiffany at Westbury Condominium. At the time of the accident, defendant, The Holiday Organization, Inc. was the parent company of defendant, Marrelli Development Corp. which, in turn, owned the unsold units at the defendant, Condominium, the owner of the subject premises. Attributing his fall to a four foot pile of snow upon which he climbed, plaintiff's decedent sued defendants, Tiffany, in negligence for failure to plow and remove snow.

On December 30, 2002, Michael Petrocelli was a tenant in the defendant, Tiffany Condominium. Decedent testified at his oral examination before trial, that the snow had begun to fall the night before his accident, on December 29, 2000 at about 11:00 p.m. and that when he first came out of the lobby of his building on December 30, 2000, at about 10:30 a.m., there was snow everywhere - about 6 to 7 inches. He also testified that by 4:00 p.m., an additional one to two feet of snow had fallen. He admitted that he could not walk on the sidewalk because it was not shoveled and that he had to climb over a mound of snow that had been created by a snow plow.

Plaintiff testified, in pertinent parts as follows:

Q:When you left your apartment a little bit after 4:00p.m., can you describe the route that you took from the lobby out to your vehicle? [*2]

***

A:When I first came out the door, there was snow everywhere. You couldn't walk on the sidewalk, it wasn't shoveled. The route that I took was directly coming out from the lobby into the parking lot.

I had to climb over the snow to walk into the plow had come through. What happened is he made those mountains of snow. Snow buried in the complex entirely.

Plaintiff's EBT, page 89, lines, 5-19 (Emphasis Added).

Q:When you had gone out previously at around 10:30 in the morning, where did you go?

A:I walked out to my car. I wanted to get a head start cleaning off the windows and the trunk and roof. I figured the snowstorm would stop. Did I know that it was going to be a blizzard? No. I figured I would get a head start, and I used a broom and cleaned off the windows and the doors, hoping that the parking lot would have been plowed out and I could have left.

Q:When you walked out to your car at 10:30 from the lobby out the parking lot, what did you walk over; was it snow, was it shoveled snow?

A:Snow, not shoveled. There was nothing shoveled.

Q:How deep was it at that point?

A:Where the drift was, it was quite deep. I would say the least was knee-deep to your shin, just below the knee. In inches, seven or eight inches. It had to be more than that. It was a bad snowstorm.

Q:You went out at 10:30 in the morning?

A:A quarter to eleven, yes.

Q:You went out again some time after 4:00 p.m.?

A:Yes.

Q:Was there a difference in the amount of snow between your two trips outside?***Was there more snow?

A:More snow.

Q:In the afternoon as opposed to when you went out in the morning?

A:Yes.

See, Plaintiff's EBT, pages 108-109.

The accident occurred at around 4:30 p.m., when Michael Petrocelli was returning to the building from the parking lot owned by the condominium, and he fell on a "mound" of snow that he had initially climbed over to get in to the parking lot.

It is undisputed that at the time of the accident, defendant, Holiday Management Associates, had a contract for snow removal for the subject parking lot with third-party defendant, North Country. According to the contract, North Country was required only to "clear roadways of snow to allow for traffic." The contract clearly and unambiguously provided that "all sidewalks to building and vehicle parking [were] the sole responsibility of Holiday Management" and that their snow removal duties at the subject parking lot would only be [*3]determined by North Country as any accumulation of 2 inches or more.

On or about January 22, 2002, Michael Petrocelli, commenced the instant negligence action against all defendants seeking to recover for personal injuries he sustained as the result of the above-referenced slip and fall accident. The claim against Defendant, St. Charles Hospital is separate and distinct from the negligence action. On or about February 15, 2002, defendants, Tiffany, interposed an answer denying the material allegations of the complaint. Thereafter, plaintiff served a verified bill of particulars on or about March 20, 2002, in which he alleged that the manner in which it is claimed that the alleged accident occurred was as follows: Defendant had a plow clear the snow in the parking lot and the snow was piled in a line, approximately 4 feet high, behind the cars. The defendants failed to shovel paths through this piled snow so as to allow access into the parking lot from the main lobby. When the Plaintiff tried to get to his car in the parking lot, his path was blocked so he had to climb over the snow bank. He slipped and [sic] fell on the pile of snow. See, Plaintiff's Bill of Particulars, Paragraph 3 (Emphasis Added).

On or about July 2, 2003, a third party action was commenced by defendants, Tiffany, against North Country Tree Service and Landscaping, Inc.

On September 15, 2003, Letters of Administration were issued to Frank Petrocelli as a result of the death of Plaintiff, Michael Petrocelli, and a stipulation amending the caption to reflect the substitution of Frank Petrocelli, as the Administrator of the Estate of Michael Petrocelli was so-ordered by the court.

Upon the instant application, defendants, Tiffany, move for summary judgment seekingdismissal of plaintiff's complaint on the grounds that the evidence does not establish a prima facie case of negligence as against it and further, that the sole proximate cause of the accident was not any action on the part of the defendant, Tiffany, but rather the plaintiff's negligence in climbing onto a snow mound during the aftermath of what he admittedly called a blizzard. The motion is denied.

To establish a prima facie case of negligence in a slip and fall case, plaintiff must show that the defendants herein, collectively known as Tiffany, either created a dangerous condition (Segretti v. The Shorenstein Company, East, 256 AD2d 234, 235, 682 NYS2d 176) or had actual or constructive knowledge of the condition (Gordon v. American Museum of Natural History, 67 NY2d 836, 837, 501 NYS2d 646). In his bill of particulars, the plaintiff herein, alleges that defendants had actual notice of the major snow storm on December 30, 2000.

It is well settled that "a party in possession or control of real property may be held liable for a hazardous condition created on its premises as the result of the accumulation of snow or ice during a storm only after the lapse of a reasonable time for taking protective measures subsequent to the cessation of the storm." Newsome v. Cservak, 130 AD2d 637, 515 NYS2d 564 [*4](citing, Valentine v. City of NY, 86 AD2d 381, 449 NYS2d 991, affd. 57 NY2d 932, 457 NYS2d 240, 443 NE2d 488; Falina v. Hollis Diner Inc., 281 App.Div. 711, 118 NYS2d 137, affd. 306 NY 586, 115 NE2d 686); see also, Grau v. Taxter Park Assoc., 283 AD2d 551; Tillman v. DeBenedictis & Sons Bldg. Corp., 237 AD2d 593, 594. The defendants herein, have made a prima facie showing of entitlement to judgment as a matter of law (see, Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923, 501 NE2d 572) by submitting, inter alia, the plaintiff's own testimony and meteorological records indicating that snow fell in the area on the date of the accident from 5:00 A.M. through 4:00 P.M, approximately one-half hour before plaintiff's fall. The storm that created the hazardous condition ceased only 30 minutes before his fall. See, Russo v. 40 Garden Street Partners,6 AD3d 420.

In opposing the motion, plaintiff submits that Michael Petrocelli's fall occurred after the defendant's agent, plowed the parking lot and created a dangerous condition. In his affidavit in opposition Frank Petrocelli, the administrator of Michael

Petrocelli's estate and the plaintiff herein avers that:

1) he lived at the same apartment complex at which Michael Petrocelli alleges to have fallen;

2) in the early afternoon a plow came through the parking lot;

3) after the plows came through the lot, there was a three and one-half foot hill of snow which blocked residents from getting from the entranceway to the parking lot to their cars;

4) he observed Michael Petrocelli walk out to his car to shovel it out, give up and attempt to cross back over the berm at which time he slipped.

Based upon Frank Petrocelli's affidavit, the court concludes that plaintiff has demonstrated an issue of fact as to whether defendant or its agent created the hazardous condition or exacerbated it. Where the owner of property, either on his own or through an agent, undertakes snow or ice removal during a storm and creates or exacerbates a hazardous condition, a cause of action for negligence may lie if same is performed negligently. See, Grau v. Taxter Park Assoc., 283 AD2d 551; Marrone v. Verona, 237 AD2d 805.

Accordingly, defendants' motion for summary judgment is denied.

Defendants' cross-motion for entry of a default against the third-party defendant pursuant to CPLR §3215(a) is hereby granted.

Defendants prove jurisdiction by annexing a copy of the affidavit of service of the summons and third-party complaint upon the third-party defendant and prove default in the affirmation of counsel. As proof of the claim, defendants annex an affidavit from a vice [*5]president of defendant Holiday Organizations, Inc. CPLR §3215(f).

Assessment of damages shall be held during the trial of the action against the defendants (Vierva v. Briggs & Stratton Corp., 184 AD2d 766).

So Ordered.

A.J.S.C.

Dated: August 30, 2005