Draesel v New York City Tr. Auth.

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Draesel v New York City Tr. Auth. 2012 NY Slip Op 32164(U) August 14, 2012 Supreme Court, New York County Docket Number: 400249/09 Judge: Michael D. Stallman 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. . . lNED ON 811712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YOFiK COUNTY MICHAEL D. STALLMAN PRESENT: Hon. PART 21 Justlee INDEX NO. HERBERT G. DRAESEL, Plalntiff, -v- 400249109 MOTION DATE FI L 6\22/12 FOBQ.NO.AL NEW YORK CITY TRANSIT AUTHORITY, Defendant. The following papers, numbered It o Notlce of Motlon- Affirmation 3 were read on thls - Exhibits A-H ,af$g&W udgment K OFFICE - Exhlblta LNo(s). 1: 2 1 NO(S). Affirmation In Opposltlon - Exhibits A-C Replylng Afflrmatlon 1 6 2012 3 IW s ) . Uponthe foregoing papers, it is orderedthat defendant s motionfor summary s judgment I granted and the complaint is dismissed with costs and disbursementsto defendant as taxed by the Clerk uponthe submission of an appropriate bill of costs; and it is further ORDERED that the Clerk Is directed to enter judgment accordingly. Inthis action, plaintiff alleges that on February 12,2008, at approximately 9:30 p.m., he slipped and fell due to the improper, negligent and unlawful accumulationof ice on stainvay S4 of the entranceto the subway station at 50th Street and Broadway in Manhattan,for the uptown No. 1line. (McCrink Affirm., Ex A [Notice of Claim].) At his deposition, plaintiff testified as follows: A. Q. A. Q. There was snow on the steps and thars when I decided to go first. But when you say there was snow on the steps, was that pristinesnow, snow that hadjust fallen, were there footprints on the snow; what did you see? There was ice under the snow. How do you know there was ice under the snow? (Continued. . . ) Page 1 of 6 [* 2] L Draesel v New York City Tr. Auth., Index No,400249/09 A. Q. A. Q. A Because that s what I slipped on. But before you stepped on that particular step, did you know that there was ice underneath? Yes. How did you know there was ice underneath before you stepped on the step? Then, no, I didn t know that until I stepped on the step. (McCrink Affirm., Ex F [Plaintiff s EBT], at 71.) Defendant moves for summaryjudgment dismissing the action, arguing that plaintiffs accident allegedly occurredduring a storm in progress, and that plaintiff has not demonstratedthat defendant had actual or constructive notice. Defendantsubmits a weather report produced by the National Climatic Data Center, which shows that, on February 12,2008, temperatures rangedfrom 17 to 31 degrees Farenheit, and there was precipitation in the afternoon and evening, with .07 inches of precipitationforthe hour ending at 9 p.m., and .08 inches of precipitationfor the hour ending at I O p.m. (McCrinkAffirm., Ex H.) The weather notations for February 12,2008 are RA [rain] FZRA [freezing rain] SN [snow] FG+ [fog, heavy] FZFG [freezing fog] BR [mist] UP [unknown precipitat ion] . (/cL) Plaintiff opposes the motion, arguing that the weather report is not in admissible form because it is not In the form of an affidavit. In any event, plaintiff contends there is an issue of fact whether there was a storm in progress, becausethe weather report indicatesthat the weather notations for the precipitation for the hour ending at I O p.m. were UP [unknown precipitation] BR [mist] , not snow. (McCrink Affirm., Ex H.) Plaintiff also asserts that defendant engaged in snow removal efforts based on the testimony o Christopher Meninger, a cleaner assigned to the f station on February 12,2008 from 3:OO p.m. to 1l:OO p.m. (AielloOpp. Affirm., Ex B [Meninger EBT], at I , I 25.) Menlnger testified, in pertinent part: Q. A. Can you tell me the general procedurethat you would take if you would arrive at your job and it had been snowing? The priority is to get rid of the snow for safety reasons. We are supposed to take care of that for customer [sic]. (Continued, Page2of 6 ..) [* 3] I c Draesel v New York City Tr. Auth., Index No. 400249/09 Q. A. Q. A. Q. A. Q. A. How would you do that? Iwould go on to the station, look and see if there is snow, go through eight turnstiles or eight stairs ways [sic] and make sure to shovel the snow, put salt and sand down, whatever need be. And you would do that upon arriving and beginningyour shift? That s my priority, look to make sure. Safety is first for Transit Authority to do that, yes. Would you go and shovel the snow yourself if need be? Yes. *** And after shoveling thesnow, would you then apply salt or sand; what would you do? Yes, after shoveling, I apply salt and sand and shovel again to double check. (MenCnger EBT, at 17-19.) Plaintiff argues that summaryjudgment should be denied because defendant s snow removal efforts might have created or exacerbated a dangerous condition. Plaintiff also claims that defendant had actual notice o the dangerous f condition on the staiway. At the statutory hearing, plaintiff was asked, Did she [plaintiws wife ] go for medicalassistance?Did she look for anybody to assistyou or any assistance from peopleworking at the train station? Plaintiff answered, Oh, yes, they came immediately. The man, whoever it was, that was at the booth came out immediately. He was wonderful. He immediately wanted to put me in an ambulance. He had told me that six other people that same night had fallen. So, he was really being very helpful. (McCrink Affirm., Ex E, at 14. [plaintiff s emphasis]) Defendant has demonstrated prima facie entitlement to summary judgment as a matter of law on the ground that a storm was in progress on February 12, 2008 at the time o plaintiff s alleged accident. f (Continued.. . ) Page 3 of 6 [* 4] Draesel v New York City Tr. Auth., Index No. 400249109 Under the so-called storm in progress rule, a property owner will not be held responsiblefor accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passedfollowing the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm. However, even if a storm Is ongoing, once a property owner elects to removesnow, it must do so with reasonablecare or it could be held liable for creating or exacerbating a natural hazard created by the storm. (Cotterv Brookhaven Mem. Hosp. Med. Ctr., lnc., 97 AD3d 524 [2d Dept 20121 [internal citations and quotation marks omitted]; see also Solazzo v New York City Tr. Auth., 21 AD3d 735, 735-736 [Ist Dept 20051.) Plaintiffs objection to the weather report is without merit. CPLR4528 provides, Any record of the observations of the weather, taken under the direction of the United States weather bureau, is prima facie evidence of the facts stated. Here, the weather report bears the certification that it is an official publication of the NationalOceanic and Atmospheric Administration. (McCrink Affirm., Ex H.) As such, the N O M weather report is selfauthenticating and would have been admissible at trial. The weather report that defendant submitted establishes that a winter storm was in progress at the time of plaintiffs accident Contraryto plaintiffs argument, the snow in progressdefense is not limitedtosnow, but applies as well to conditions caused by sleet andlor freezing rain. (HilsmanvSarwil Assoc., L.P., 13 AD3d 692,693-694 [3d Dept 20041.) The weather report indicates that the range of temperatures on February 12,2008 were below freezi ng. Although Meninger testified that his general procedure would be to remove snow at the beginning of hisshift if it had been snowing, Meninger did not testify that he actually performed snow removal on February 12,2008. Meanwhile, plaintiff testified at his deposition that he did not feel any sand on the staircase: A. I would say that if there was sand, Iwould havefelt the sand; so therefore, I would say there was no sand. (Continued.. . ) Page 4 of 6 [* 5] V 4. Draesel v New York City Tr. Auth., Index No. 400249/09 Q. A. Q. A. Q. A. Do you know for a fact that there was no sand there? I think I could say that there was no sand there. On what basis? Well, I don t think I would have slipped if there had been sand. But do you know for a fact that there was no sand on any of those steps. I would say that there was no sand. (Plaintiffs EBT, at 86.) Even if the Court were to assume that Meninger had performed snow and ice removal, [tlhere is simply no evidence that by removing the snow and applying salt, defendant exacerbated the condition. (Gleeson v New York City Tr. Auth., 74 AD3d 616,617 [Ist Dept 20101.) In Gleeson, the Appellate Division, First Department afflrmed the lower court s decision (Schachner, J.) to grant the defendant summary judgment dismissing the complaint. The defendant tendered evidence that there was a storm in progress, and [tlhe record shows that defendant s employee was in the process of removing snow and Ice and salting the steps when the accident occurred. (ld at at 617.) In affirming the dismissal, the Appellate Dlvlslon reasoned, There is simply no evidence that by removing the snow and applying salt, defendant exacerbated the condition. Indeed, plaintiff testified that part of the steps had been shoveled and salted. (/d. [internal cltatlon omitted] .) Plaintiff argues that, given the testimony that snow removal might have been performed, summary judgment should be denied, citing Pipero v New York City Transit Authority. (69 AD3d 493 [IstDept 20101.) In Pipero, the Appellate Division affirmed the lower court s decision (Schachner, J.) denying the defendant s motion for summary judgment dismissing the complaint. Like Gleeson, the defendant in Pipero submitted evidence of a storm in progress. However, the Appellate Division affirmed denial of summary judgment, stating, [P]laintiffs testimony and defendant s own records rake issues of fact as to whether defendant gratuitously and negligently performed snow and ice removal operations and as to whether Its failure to place sand or salt on the stairs created or exacerbated a dangerous condition. (Id.) (Continued Page 5 of 6 ..) [* 6] Draesel v New York City Tr. Auth., Index No. 400249109 Justice Schachner authored the lower court decisions in both Gleeson and Pipero, which presented similar facts. Because the only ostensible difference between the two different outcomes mentioned in the appellate decisions was the lack of evidence that defendant created or exacerbated a dangerous condition in Gleeson, the decisions must turn on this distinction. On this motion for summary judgment, it is not reasonable to infer solely from the cited EBT testimony respecting general snow removal procedures that snow removal actually had been performed, or that a triable issue of fact is thereby presented as to whether a dangerous condition was created or exacerbated. Here, as in Gleeson, there is no evidence either that defendant performed snow removal, or that such snow removal was negligently performed, or that such snow removal would have created or exacerbated a dangerous condition of the stainnray S4. Therefore, defendant's summary Ludgment motion is granted. Dated: '$/ I f[* ,J.S.C. New ork, ewYork I . Check one: ................................................................ 2. Check if appropriate:............................ MOTION IS: ................................................ 3. Check If approprlate: 0NON-FINAL DISPOSITION GRANTED 0DENIED 0GRANTED IN PART 0OTHER 0SElTLEORDER 0SUBMIT ORDER DO NOT POST 0 FIDUCIARY APPOINTMENT REFERENCE W CASE DISPOSED NEW YORK COUNTY CLERK'S OFFICE Page6 of 6

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