Washington v Milford Mgt. Corp.

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Washington v Milford Mgt. Corp. 2012 NY Slip Op 30425(U) February 24, 2012 Supreme Court, New York County Docket Number: 107190/2006 Judge: Joan B. Lobis Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. NNED ON 212712012 [* 1] SUPREMI3 COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: - JOAN B.LOBlS PART 6 Justice Index Number : 107190/2006 WASHINGTON. RICHARD INDEX NO. VS. MOTION DAT@ MILFORD MANAGEMENT SEQUENCE NUMBER : 006 11\29! I MOTION SEQ. NO. -SUMMARY JUDGMENT 00 - - \9,worn read on t h l ~ to@ rnoUon Notlco of MoUonlOrder to Show Causs -Affldsvib - Exhlbltr The following pspem, numbered f to < \ L m Answering Affldavlts - Exhiblts IN d 4 . Reptying AMdavits 1 4 Upon the fomgolng papers, It is ordered that thls motion I s FEB 27 2012 cc Dated: NEW YORK I CLERK'S OFFICE N b$2Y/.- , J.S.C. .....................................................................0CASE DISPOSED DENIED ORANTED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 3. CHECK IF APPROPRIATE: ....l....l..Y.lll,.,...,.,,,,,..,............., S E T n E ORDER 0 1, CHECK ONE: DO NOT POST NON-FINAL DISPOSITION 0ORANTED IN PART 0SUBMIT ORDER FIDUCIARY APPOINTMENT OTHER REFERENCE [* 2] Plaintiffs, -against- Index No. 107190/06 MILFORD MANAGEMENT COW., MF ASSOCIATES, HEALTH INSURANCE PLAN OF OREATERNEW YORK, YOFXVLLE LAND ASSOCIATES, LHHN MEDICAL, P.C., and LENOX HILL HOSPITAL, FILE I Defendants Milford Management Corp., MF Associates, Yorkville Land Associates I (collectively Milford Management ), and Health Insurance Plan of Oreater New York (TUP ) move for an order granting them summary judgment,pursuant to C.P.L.R. Rule 3212, dismissing plaintiffs complaints against t e on the grounds that there are no triable issues of fact. Plaintiffs hm Richard Washington and Elizabeth Washington oppose the motion. Plaintiffsbring this lawsuit against MilfordManagementand HIP for injuries that Mr. The relafionshipbetween Milford Management Corp., MF Associatcs, and Yorkville Land Associates is unclear, but the moving papers refer to all three entities as Milford Management- Accordingly, tho court will considor the arguments on behalf of Milford Management as being made on behalf of Milford Management Corp.,MF Associates, and Yorkville Land Associates. [* 3] Washington sustained as the result of an alleged slip and fall? On January 31, 2005, at approximately 1:00 p.m., Mr. Washington fell on the 96th Street side of premises located at 215 East 95th Street, New York,New York (the Pr~rnises~ ). sustained a ffactured shoulder as a result He of the fall. He alleges that icy conditions on the public sidewalk caused h m to slip and fall. The i Premises arc owned by Milford Management and leased to H P On or about May 24, 2006, I. plaintiffscommenced this action against, a e r dig Milford Management and HIP,alleging that they were negligent in their ownership, operation, maintenance, and control of the Premises by allowing the Premises to become and r m i snow- and icc-ladcn; by failing to shovel or otherwise remove ean snow and ice; by improperly removing snow and ice; by creating a dangerous and hazardous condition; by failing to salt; and by improperly saltingthe ground. Additionally, plaintiffsallege that Milford Management and HIP were on notice of the condition because their agents, servants, and employees were present to observe and correct the condition and failed to do so, and because the condition existed for a long period of time prior to the accident. The movants seek to d s i splaintiffs complaint against them,arguing that they did ims not c r a t e the dangerous condition or have actual or constructive notice of the condition that caused Mr. Washington s injuries. In support of their motion, the movanta attach the transcripts of the examinations before trial ( EBT )of Mr. Washington; Mrs. Washington; Ernest Sanchez, the Plaintiffs also raised claims against Lenox Hill Hospital ( LHH ) LHHN Medical, and P.C., for premises liability and medical malpractice. In a dccision dated July 21,2010, this court granted LHH summary judgment on the premises liability claims and granted LHHN Medical, P.C., summary judgment as to all claims against it. Plaintiffs claims against LHH sounding In medical malpractice survived LHH s motion for summary judgment. The Premises cover the black between East 95th Street and East 96th Street, between 2nd and 3rd Avenues. -2- [* 4] superintendentof the Premises in 2005; and Richard P.Mayer, the Executive Director of Lenox Hill Community Medical Group. They also offer an affidavit f o Michaal Gooley, the Assistant rm Director of Real Estate Services for HIP. Mr. Washington testified that on January 3 1,2005, he accompanied his wife to her doctor s appointment at the 96th Street entrance of what Mr. Washington referred to as the H P I Center. Upon arriving at the Premises, Mr.Washington testified that he observed no snow, s l , or at sand on the sidewalk, but that there were a few patches of ice approximately one (1) foot in size and one (1) inch in thickness. He stated that the ice looked as if someone had been chipping at it, that he believed that someone did a poor job clearing the ice f o the sidewalk, and that the ice must rm have dropped on the ground. He further testified that he had no difficulty walking f o his CILI to rm the H P Center, however, he fell on his way back to the car, approximately three (3) feet f o the I rm exterior fence of the HIP Center. Mrs. Washington testified that on January 3 1,2005, she was walking beside her husband when he fell on the sidewalk outside the HIP Center. She stated that she did not fall, and that she did not observe any ice when she entered the H P Center for her appointment. She testified I that she did not see the ice that caused her husband s fall until after ha had fallen, and described the piece of ice to be dark, old, and hard, w i t h approximately ten (1 0) groovcs in it. She also stated that there were other patches of ice scattered on the ground, as a result of a poor shoveling job. She stated that the ice was present from the last snowfall that occurred a couple weeks prior to the accident. -3- [* 5] Ernest Sanchez testified on behalf of Milford Management. He testified that he i s employed by Ogden Cap Properties ( Ogden Cap ) at 225 East 95th Street.4 Mr. Sanchez stated that on Janua~y 1,2005 he was the suptrintcndent and a resident of 2 15 East 9 t Street. He testified 3 5h that the property hc managed consisted of four(4)buildings: 205,215,225 and 235 East 95th Street, collectively known as Normandie Court, and that the HIP Center is located below the lobbies of all four buildings. In 2005, as superintendent, Mr. Sanchez was responsible for the operation of the Premises and supervised approximately one hundred (100) people, including doormen, porters, and handy-persons. The Premises staf ¬ed approximately forty (40) porters, whose duties includcd snow removal. Mr. Sanchez testified that only Ogden Cop employees performed snow removal at the Premises.D r n the time in question, Mr.Sanchezstated that the Premiseshad snow shovels, snow uig blowers, and sanding/salting equipment. Mr. Sanchez explained that the snow removal procedure wm to divide the Premises into zones, and assign a few men to each zone. Porters w r also ee assigned to sidewalks and street corners, and each assigned porter was to clear the entrance ways and apply calcium chloride. In addition, a porter traveled around the Premises with an ice chipper, calcium chloride, a broom, and a dustpan to spot clean trouble areas. A snow and ice removal record is completed every time snow and ice removal efforts are undertaken, and the record is maintained in the building for up to Seven (7) years. The snow and ice removal record annexed to the moving defendants papers indicates that ice wai chiseled on the 96th Street entrance of the Premises on Mr. Sanchez testified that he was previously employed by Milford Management until about July 2003,when Milford Management separated f o Ogden Cap. For the purposcs of this rm motion, Milford Management docs not dispute that Ogden Cap and Milford Management arc part of the Same entity. [* 6] January 28,2005, and that the area was also salted. Richard P. Mayer testified that he is employed by Lenox Hill Hospital ( LHH )as the ExecutiveDirector ofthe Lenox Hill Community Medical Qroup, located at 215 East 95th Street, and worked Monday through Friday in 2005. Mr. Mayer states that Milford Management w s a responsible for the care and maintenance of the sidewalks in front of the Premises, that he observed uniformed employes of the building removing snow f o the sidewalks in the month of January rm 2005, and that they would appear at the first sign of a snowfall. He testified that Lenox Hill Community Medical Group was a subtenant of HIP, and that HIP lased space f o Milford rm Management. He stated that Lcnox Hill Community Medical Oroup w s the only commercial tenant a on the Premises. Mr. M y r further testified that he used the 96th Street entrance daily, that he ae neither made nor rcctived any complaints in January 2005 about the condition of the sidewalk, and that he did not observe any snow or ice on the sidewalk on January 31,2005. Michael Oooley submitsa sworn affidavit stating that he is the Assistant Director of Rcal Estate Services for HIP and has been employed in this capacity since 1981. M .Gooley states r that his duties include administration of HIP Sleased properties, and that he has pcraonal knowledge of the lease and sublease in effect for January 3 1,2005 for 2 15 East 95th Street. H sets forth that a on or about June 12,1991, HIP leased the Premisesh r n Milford Management, and that on or about June 30,2000, HIP subleased the Premises to LHH. Mr. Gooley m i t i s that since June 2000, anan H P has not occupied any portion of the Premises. Regardless, Mr. cfooley sets forth that snow I removal was Milford Management s responsibility. As such, Mr. Gooley states that HIP w s not a [* 7] responsible for the removal of snow or ice f o the sidewalk; that HIP did not clear any snow in rm January 2005; and that HIP did not subcontractwt a snow removal company to remove snow f o ih rm the sidewalks, as it was Milford Management s responsibility pursuant to the lease. Based on the testimony,Milford Management and H P collectively argue that they I are entitled to summary judgmant because there is no proof that they created the alleged dangerous condition, had actual knowledge of the condition, or had constructiveknowledge of the condition. They maintain t a there is no evidence that their prior removal acts c a d or exacerbated the ht condition. Further, the moving defendants argue that plaintiffs allegations arc conclwory, speculative, and insufficient to establish liability, a3 there is no evidence in the record indicating where the ice came from. M r specifically, Milford Management and H P argue that Mr. oe I Washington s statements that ice must have dropped on the ground and that someone did a poor job shoveling and chipping the ice, and Mrs. Washington s recollection that a snow storm had occurred a coupleof weeks prior to the accident,are all without basis and are insufficientto establish (I) that the condition existed for a sufficient period of time for them to discover and remedy the condition, or (2) that their snow removal efforts created the condition. Milford Manegtment and HIP argue that plaintiffs mere allegation that some patches of ice were present on the sidewalk in front of the Premises provides no basis for imposing liability. Defendant HIP fiuther argues that it is entitled to summary judgment on the grounds that it owed no duty of care to plaintiffs, m snow removal was Milford Management s exclusive responsibility under the lease, which Mr. Gooley s affidavit supports. HIP argues that it did not -6- [* 8] occupy the leased space at the time of Mr. Washington s fall. It points out that, as an out-ofpossession tenant, H P could not have had actual or constructivenotice of the dangerous condition. I In addition, H P points out that Mr. Sanchez testified on behalf of Milford Management that no one I besides Ogden Cap employees performed snow and ice removal at the Premises. In opposition, plaintiffs argue that summary judgment should be denied bemuse Milford Management did cause and create the condition responsible for Mr. Washington s fall; that issues of fact exist as to whether Milford Management had constructive notice of the condition; and that Milford Management failed to establish that it lacked actual notice? In support of their opposition, plaintiffs offer affidavits f o Mr. and Mrs. Washington, and an expert affidavit f o rm rm meteorologist George Wright. The substance of Mr. and Mrs. Washingtan s affidavits echo their earlier EBT testimony. Plaintiffs expert, Mr. Wright, sets forth that he is a professional e meteorologist with degrees in meteorology and the owner of Wright Weather Consulting, LLC. H states that he reached hIs expert opinion after having reviewed plaintiffs bill of particulars, their rm affidavits,and official copies of weather and climatological data for January 2005 f o sources such as the National Climatic D t Center. To a reasonable degree of meteorological certainty, Mr. aa Wright states that at the Premises, between thirteen and one-half (1 3.5) and fourteen and one-half (14.5) inches of snow fell from January 22 to January 23,2005; the weather was dry and cold wt ih Plaintiffs additionally argue that MF Management and Yorkville Land Associates failed to establish, separately fiom Milford Management Corp., that they lacked actual and constructive notice of the condition responsible for Mr. Washington s fall. However, as was set forth page 1, fn. 1, the movants refer to all three entities as Milford Management and the court is considering the arguments on behalf of Milford Management as made on behalf Milford Management C o p , MF Management, and Yorkvllle Land Associates. -7- at [* 9] no measurable snowfall between January 23 and January 29;and that thore was light snowfall which evaporated by late morning on January 30. Mr. Wright states that on January 3 1,2005, there was no precipitation. He opines that the ice described by plaintiffs was entirely consistent wt the ih prevailing meteorological conditions prior to and at the time of Mr. Washington s fall. He states that, at 1:00 p.m. on January 3 1, 2005, there were between eight (8) to nine (9) inches of snow present on exposed,undisturbed (not walked upon or shoveled), and untreated (not salted) ground. Mr. Wright opines that the ice that causcd Mr. Washington to fall could only have betn produced by the maor winter storm that occurred between January 22 and January 23, because the temperatures afterthis storm were cold enough to allow for the Ice to remain frozen on the sidewalk and the ice would have been present for at least eight (8) days prior to Mr.Washington s fall. Plaintiffs argue that Milford Management had actual notice of the condition, in light of plaintiffs testimony that the ice had indented grooves in it EU if someone had previously used an ice chipper on it; Milford Management s admission that it, alone, is responsible for snow removal at the Premises; and Milford Management s actual performance of snow and ice removal in the days prior to Mr. Washington s fall. Plaintiffs further argue that Milford Management had constructive notice of the condition, based on plaintiffs testimony that the ice appeared to be dark and old and Mr. Wright s opinion that the ice that caused Richard Washington to fall must have rcmdned on the sidewalk for at least eight (8) days prior to the accident, which would have given Milford Management ample time to observe and correct the condition. In addition, plaintiffs argue that Milford Management has failed to submit an affidavit fiom someone with knowledge that 96th Street sidewalk was inspected and w s found to be free of snow and ice. a -8- [* 10] In reply, Milford Management and WIP argue that they are entitled to summary judgment on the grounds that plaintiffs failed to raise a triable issue of fact, They argue that Mr. and Mrs. Washington s affidavits should not be considered because they contain statements that are inconsistent with their respective EBT testimony. They further point out that plaintiffs failed to oppose summary judgment as to HIP. They state that M .Wright never concludes that there was ice r on the ground. Further,they argue that Mr. Wright s statement that the conditions on January 3 1, 2005 were conducive to the development of ice on unexposed, undisturbed, and untreated ground is irrelevant to the actual conditions on the s d w l and is contradictory to plaintiffs statement that ieak the sidewalk was walked on by many people. Milford Management and HIP argue that Mr. Wright s testimony is speculative because it fails to rule out other causes of the ice patch and is unsupported by proof in the admissible form. They maintain that the court should disregard plaintiffs cxp~rt s affidavit because the expert was not identified until about five (5) months after the filing of the note of issue and certificate of readiness. A movant for summary judgment must make a grime showing of cntitlernent by demonstrating that there are no material issues offact. m . z v . Prosmct Hosp, 68 N.Y.2d 320, 324 (1986)).Once the movant satisfies this burden, then the burden shifts to the opposing party to present evidence in admissible form raising a triable issue of material fact. v, City of PLYt, 49 N.Y.2d 557,560 (1980). All reasonable inferences will be drawn in favor of the nonmoving party. -lays Y. Masturto. 168 A.D.2d 204,205 ( I st Dep t 1990). Where the court entertains any doubt as to whether a triable issue of fact exists, summary judgment should be denied. Dalienda v. Johnson. 147 A.D.2d 312, -9- 317 (2d Dep t 1989) (citations omitted). [* 11] To establish a case of negligence, IL plaintiff must demonstrate that a defendant breached a duty of reasonable care that he or she owed to thc plaintiff, and that such 66 N.Y.2d 1026,1027 breach proximately caused the plaintiffs injury. (1985). Generally, a property owcr is under no duty to remove ice and snow that naturally accumulates upon the sidewalk in front of its premises, unless the condition w83 made more dangerous as a result of the owner s snow removal efforts. Gerber v. C i t of N.Y..280 A.D.2d 289~ 90(lst Dep t2001). However, the Administrative CodeoftheCityofNtw York 0 7-21O imposes tort liability upon certain property owners, including the defendants herein, for the negligent failure to remove snow and ice from the sidewalk abutting their property. Mr inez v. at Khairnov, 74 A.D.3d 1031, 1032- 33 (2d Dep t 2010). In a slip and fall incident involving snow and ice, a property owner may be held liable only upon a showing that it created the dangerous condition or had actual or constructive notice of the condition. L9, at 1033; Salvanti v. S w Indus. Park a A.D.3d 546 (2dDep t 2006). To place defendants on constructive notice, the dangerous , 27 condition must have existed for a sufficient length of time before the accident as to allow defendants to discover and remedy it. 67N.Y.2d 836,837 (1986). The movants have established that Milford Management w s responsible for s o a nw removal at the Premises. They further established that H P was an out-of-possession sublessorwho I exercised no control over the Premises and who did not undertake snow-removal at the Premises. As such, defendant HIP has prime & established that it owed no duty to plaintiffs. Furthermore, & as HIP lacked actual and constructive notice of the condition, it cannot be held liable for plaintiffs injuries. &e &n v. 226 W.75th st,258 A.D.2d 3 14 (1st Dep t 1999). Plaintiffs failed to oppose -10- [* 12] HIP S arguments. Accordingly, that branch ofthe motion seeking to dismiss the complaint as against HIP is granted. As to Milford Management, it has established that it did not have actual or constructive notice of the icy condition through the EBT testimony of Mr.Sanchez,who stated that Milford Management routinelyundertook to rcmove snow and ice at the Premises and described the ice removal procedure in place at the Premises; the ice removal records, which showed that ice removal was performed on January 28,2005; the EBT testimony of Mr. Mayer, who stated that he neither observed any snow or ice 89 he entered the building on January 3 1,2005 at the 96th Street entrance, nor received any complaints about ice on that day; and the EBT testimony of plaintiffs, who stated that they made no complaints to anyone at the Premises about the icy conditions, which would have put Milford Management on actual notice of any icy conditions. Moreover, Mrs. Washington acknowledged that she did not recall observing any ice or snow as she walked into the building for her appointment. However, the court finds meritless defendants argument that plaintiffs affidavits annexed to their oppositionpapers are rife with inconsistencies and were fabricated by their attorney. Unlike the cases to which defendants cite, plaintiffs afidavits do not allege new facts that were not already contained in their EBT testimony. Their descriptions of the ice in their affidavits are not materially different from their prior accounts during their EBTs. Defendants further contend that Mr. Wright s statement that between eight and nine -1 1- [* 13] inches of snow and ice would have been present on "exposed, undisturbed and untreated" ice is irrelevant to the actual condition and contradicts plaintiffs' statement that the sidewalk was "walked on by many people." The courts finds this argument unavailing. Mr.Wright testified as an expert as to the weather conditions that persisted in the arc4 not as a witness who obscmed any ice at the Premises. His affidavit states that the weather was cold enough to allow ice to have formed md remained on the sidewalk, which is sufficient to raise a triable issue of fact in opposition to a motion for summary judgment. Furthermore, Milford Management's argument that Mr. Wright's affidavit is speculative because it fails to rule out other causes of the ice patch is misplaced. The cases to which the movants cite are distinguishable from the case at bar because, here, plaintiffs' expert sufficiently relied on relevant evidence and meteorological data. v, Citv of N.Y,, A.D.3d 475 (1st 50 Dep't 2004); M s v. Cir, of N,Y , 5 A.D.3d 312 (1st Dep't 2004); McCard v. O l e & YQ& os Co,. 8 A.D.3d 634 (2d Dep't 2004). In addition, Mr,Wright's affidavit is not speculative, as it is supported by data from the National Climatic Data Center, which plaintiffs include in their opposition papen. m o t e l v. Jcld-Wen. , 50 A.D.3d 1586, 1587 (4th Dep't 2008); C.P.L.R.Rule 4528. Moreover, defendants have failed to show how Mr.Wright's affidavit fails to conform to C.P.L.R. Rule 4528. Additionally, as to the moving defendants' argument that plaintiffs' expert amdavit should not be considered because they identified their expert after the filing of the note of issue and certificate of readiness, the court find this argument unpcrsuasivc. The movants fail to articulate -12- [* 14] which rules, laws, or orders plaintiffs violated. C.P.L.R.6 3101(d) states, in relevant part, that [u]pon request, each party shall identify whom the party expects to call 8s an expert witness[.] C.P.L.R.§ 3 101(d)( l)(i). The moving defendants have failed to show that they have made any such request, wt which plaintiffs have not complied. In addition, as no trial date has been scheduled for ih this case, it is permissible for plaintiffs to disclose their expert at this time. Finally, the court finds that plaintiffs have raised triable issues of fact as to whether Milford Management had constructive notice of the condition and as to whether Milford Management created the dangerous condition. Plaintiffs testimony that the snow looked old, as if it had been walked upon by many people, along wt the affidavit of plaintiffs expert, who states ih that if there were ice, it only could have been from the snow storm that occurred between January 22 and January 23,2005, and that the weather after the storm was cold enough to allow ice to have formed and remained on the Premises,raise issues of fact as to whether the condition may have been present for a period of time, thereby providing Milford Management w t constructive notice and ih sufficienttime to remedy the condition. u & @ v. m o f N m 67N.Y.2d 836,838 (1 986). It is well settled that where a condition continues for some period of time, there is ajwy question as to whether the defendant knew or should have known of the existence of the condition. Taylor v. B d e r s Trust Co, 80 A.D.2d 483, 487 (1st Dep t 1981). Additionally, plaintiffs testified that there appeared to have been grooves in the ice, ES I if someone had been chipping at it. Mr. Sanchez alao testified that porters would travel around the Premises wt an ih ice chipper, among other things, to spot clean trouble areas, and the snow and ice removal log indicates that on January 28,2005, an ice chipper w s used at the 96th Street entrance. Whether the a -1 3- [* 15] sliovcling of tlic sidcwalks and ice rci1iova.I cl'l'nrts of Milford Management crcated thc hajrxdous condition is a question for the trier or ruct. Glick v, Cilv 0fN.Y.. 139 A.D.2d 402, 403 (1st Dep't 1388). Accordingly, that branch o f (he motion seckiug to dismiss all claims againsl Milford blanzlgoinciit is dcnicd. Accordingly, i t is Iiercby ORDEIIED that the branch ol'thc motiou seeking suiiininiyjudgmcnt dismissing all claiins agninst I + a l t h Insuraticc Plnn of Grealcr New York is granted; iind it is flirther ORDERED that the branch of the motion sccking summary judgmcnt dismissing ill1 claiins against Milford Manageinent Corp., MI: Associutcs, and Yorkvil IC L a i d Associaks is dcnicd; arid it is tiirthcr ORDERED Ilia1 the retiiaining parties shall appcnr for a pre-trial confcrcncc on April 10, 20 12, a1 9:30 a m FILED ENTER: JOAN%. L O B ~ SJSC. , -14-

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