Fabian v Mutual Redevelopment Houses, Inc.

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Fabian v Mutual Redevelopment Houses, Inc. 2012 NY Slip Op 31379(U) May 15, 2012 Supreme Court, New York County Docket Number: 110552/10 Judge: Joan M. Kenney 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. SCANNED ON 512312012 [* 1] SUPREME COURT OF THE STAT$ QF NEW YORK NEW YORK COUNTY PRESENT: JOAN M. YENHW J.S.C. PART JuMcce _- 1 - Index Number, 110552/2010 FABIAN, LUCRECIA vs MUTUAL REDEVELOPMENT HOUSES SEQUENCE NUMBER 001 SUMMARY JUDGMENT .f [* 2] DECISION AND ORDER Index Number: I 10552/10 Motion Seq. No.: 00 1 -againstMutual Redevelopmelit Houses, Inc., and Dallas BBQ., Defendants. X -----------_rr_"*l*__-------------------------------------------------- KENNEY, JOAN M., J. Recitation, as required by CPLR 221 9(a), of th motions In dismiss. ~ 1 KiF s Papers Notice of Motion, Affirmation, and Exhibits Opposition Afirrnation, and Exhibits Reply AFFrmation, Exhibits w v i e w of this MAY 2 3 2012 Nurn bered 1-1 1 12-15 16-18 NEW YORK COUNT/ CLERK'S OFFICE In this personal injury action, defendants, M~itual Redevelopment Houses, Inc. and d'allas BBQ, move for an Order, pursuant to CPLR $ 32 12, dismissing the complaint, On January I 1 , 2009, at approximately 7am, Lucrecia Fabian was walking on the sidewalk f o the subway at 23'(' St. and 8* Ave. in Manhattan when she slipped and fell on some ice and rm snow (the accident). The building that abuts this corner is owned by Mutual Redevelopment Houses, Inc. and leased by Dallas BBQ (owner and tenant, respectively). At the time of the accident, plaintiffclaiiiis it was dark and cold, but not snowing or raining and that there was approximately 1 % ft of snow on and around the sidewalk. Plaintiff fui-thcr asserts that in the area where she fell, there was an 18-inch-wide path that allegedly had been created by the tenant's cmployees the day before the accident. As plaintiff was walking, she noticed a patch of dirty looking ice, and in an attempt to detour around the ice patch she went to climb onto the piled up snow on either side of the sidewalk. It was as plaintiff was [* 3] attempting this, that plaintiff s feet slipped out from under her and she fcll, suffering a fracture to her wrist. At dcfcndants cxnminntion before trial (EBT) the tenant s geiieral manager, Luis Alvarado, stated that it was tenant s business practice to clean snow and ice conditions off ofthe side walk aroiiiid the store. (Alvarado EBT at 16). In general, as soon as it begins snowing, the tenant s busboys will shovel out paths on the sidewalk. (Alvarado ER I at 29-30). The snow that is removed froiu the sidewalk is then piled on both sides of the path, (Alvarado EBT at 3 1). Alvarado further testified that 0 1 January 1 IO, 2009, the day before the accident, it was snowing. (Alvnrado EBT at 23). Aditionally, defendants claim that there was a stcrnn in progress from January 10 into the morning of lanuary I 1 th, ceasing at 451am.Altliough Alvarado stated that there was snow l ~ day before, he did not recall whether or not there were busboys sent to shovel that day. e (Alvarado ERT at 23,26). Defendants assertion of the storm in p r o p s s is reliant 011 certified climatological records, submitted without an expert opinion. (see Exhibit I to moving papers.) kAJum&i Defendants argue that plaintiff s claim should be dismissed because no duty of care is owed l o plaintiff as there \vas a storm in progress which had ended only 2 hours prior to the accident. Plaintil fcontends that defendants failed to meet their burden as to creation and/or notice of the dangerous condition, and the storm in progress rule does not apply because defendants created the dangerous condition that caused her to slip and fall. Digcession Pursuant to CPLR 32 12(b), a motion for summary judgment shall bc supported by affidavit, by ~t copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shnll be by a person having knowledge of the facts; it shall recite all the 2 [* 4] material facts; and it shall show that there is no defense to the cause of action or that the cause of action ofdefense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of nction or defense shall be established sufficiently to warrnnt the court as a matter of law in directingjiidgrncnt in favor of any party. Except ns providcd in subdivision c of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion. The rule governing summary judgrncnt is well established: The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgtnent as a mailer of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (Winegrad v New Y m k rJniversit4) Medicnl Center, 64 NY2d 85 1 [ 19851; Torrerello v Carlin, 260 AdZd 201 [ 1 Dept 19991). In order to establish a prima facie case of negligence in a trip and fall action, a plaintiff must demonstrate that ; L defendant either created a dangerous condition, or had actual and/or constructive notice of the defective condition alleged (see .Judith 13. Arnold v New Yurk City Huuring Airthorify, 296 AD2d 355 [ 1st Dept 20021). A genuine issue of material fact exists when defendant fails to establish that it did not have actual or constructive notice o f a watery or hazardous condition (Aviles v, 2333 I Cory., 66 A.D.3d 432, 887 N.Y.S.2d 18 [ l Dept. 20091; Baer-Sharp Y, NW York Ciry Tr. Aufh., 38 A.D.3d 229, 830 N.Y.S.2d 555 [ l Dept. 20071). N Y C Code 9 16-123, titled Removal of Snow, Ice and Dirt From Sidewalks; Property Owners Dutics states: Every owner, lessee, tenant, occupant, or other person ...shall, within four hours after the snow cemes to fall ..., removc the snow or ice, not including the hours between 9pm and 7am. Simply, building owners and/or occupiers have 4 hours after a snowfall stops to 3 [* 5] remove snow and ice Eroin sidewalks; excluding the 9prn-7am hours. (Rodripez v. NYC Hous. A u k , 52 A.D.3d 299, 859 N.Y.S.2d 186 [I, Dept. 20081). Summary judgment is proper in a personal injury action involving snow or ice where defendant demonstrates, through climatological data and expert opinion, that the weather conditions would preclude the existence of snow or icc at the time of the accident. (emphasis added: Il4uLwyv. Newhurgh W, Realty, Inc., 84 R.D.3d 564,923 N.Y.S.2d 8 1 [ 1 Dept. 201 11). Dismissnl of a coinplaint is warranted when the accident occiirs while a storm is in progress. (Krinsky w. Forfrmnln. 82 A.D.3d 409, 9 I8 N.Y S . 2 d 40 [ 1 Dept. 20 1 I]). Even during an ongoing storm, while ordinarily there would be no duty to remove snow, if one takes steps to remove snow end ice, liability may result if those efforts create a more hazardous condition or exacerbate a natural hazard created by the storm. (Sunken 1 . 226 W, 75IhSt., 258 h.D.2d 314, 685 N.Y.S.2d 217 [ l Dept. 19991, triable issues of fact raised as to what effect the snow removal had on the condition of the sidewalk where either side of the path had accumulations ofold snow of up to 3 inches; Rector v. Ciry ofNY, 259 A.D.2d 319, 686 N.Y.S.2d 426 [lst Dept. 19991; ,Jimenez v. L ummings, 226 A.D.2d 112, 640 N.Y.S.2d 61 [Id Dept. 19961). To recover, a plaintiff must show thut a hazard was increased by what was doiie in the process of sno\v/ice removal. (Reclor., 259 A.D.2d at 320). Ajury could readily conclude that a defendant s snow removal efforts increased the hazard to pedestrians, producing a surface that is considerably more slick, dificult to discern and inherently dangerous than the naturd state of the fallen snow. (Joseph v. Pitkin Curpet, Inc., 44 A.D.3d 462, 843 N.Y.S.2d 586 [ I Dept. 20071). Here, the Court is presented with a number of triable issues of fact. Plaintiff claims that it was not raining or snowing at the time of the accident, while defendants contend that it was snowing the night prior, and that the storm continued until approximately 4 5 lam. Even with 4 [* 6] defendants climatological data, thc lack of expert opinion renders the reporl inadmissible and/or inconclusive on the issue ofwhether or not a storm was in fact in progress. In t~ factual S L ~at, tnost, there is dispute regarding whether or not the stom in progress ride applies here. Fui?hermore, defcndant tenant admits that their snow removal process consists of shoveling the sidewalk, and placing the excess snow to either side of the walking area. I Iere, it is up to the finder of fbcl to concludc whether defendants snow removal efforts created the alleged dangerous condition that purportedly caused plaintiff to fall, or if the condition that allegedly caused plaintiff to fall was just part of an inherently dangerous natural occurrence. Accordingly, it is ORDERED, that defendants sumrnaryjudgment motion, is denied, in its entirety; and it is ? I further ORDERED that the parties proceed to mediation, ,forthwith. FILED Dated: May 15, 20 12 MAY 2 3 2012 ENTER: / Joan M. Kenney, J.S.C. 5

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