Perez v New York City Hous. Auth.
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Perez v New York City Hous. Auth. 2012 NY Slip Op 32637(U) October 12, 2012 Sup Ct, NY County Docket Number: 103275/09 Judge: Shlomo S. Hagler 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. [* 1] UPREME COURT' OF THE STATE OF NEW NEW YORK COUNTY PEREZ, DELILAH vs. NEW YORK CITY HOUSING SEQUENCE NUMBER : 001 .YOTION SEQ. NO. - SUMMARY JUDGMENT The following pape I NEW YORK COUNTY CLERK'S OFFICE " [* 2] Plaintiff, Index No.: 103275/09 inst- NEW YORK CITY HOUSING AUTHORITY, Defendant. SBLOMO HAGLER, J. : FILED OCT 18 2012 NEW YORK COUNTY CLERKS OFFICE pursuant to C P L R 3212, for summary judgment dismissing the complaint. Plaintiff Delilah P e r e z opposes the motion. BACKGROUND night. Plaintiff, a tenant at a NYCHA building located on Madison Avenue in Manhattan, was disembarking from a taxi in front of h e r building and, while stepping up to the curb and onto a five 0 .six 1 inch mound of snow, slipped and fell. The complaint alleges t h a t NYCHA, as the owner of the property, was negligent in failing to remove snow from the sidewalk or improperly removing snow from the sidewalk. Motion, Ex. B. The crux of NYCHA's argument is that, according t o a11 meteorological data, there could not have been such a n accumulation of snow and/or ice on that date, and, o t h e r than 1 [* 3] plaintiff s testimony, there is no independent admissible evidence to contradict the meteorological findings. According to plaintiff s testimony at her 50-H hearing, a p p r o x i m a t e l y four days prior t o the date of the occurrence, she saw two NYCHA employees operating two mo,torized vehicles pushing snow from the sidewalk in front of the building to the curb. Ex. A , at 20-21, 25. Plaintiff reiterated this statement at her e x a m i n a t i o n before trial (EBT). Plaintiff EBT, at 49-51. Plaintiff further said that she thought that it had snowed three or four days before her accident (Ex. A, at 7; EBT, at 4 7 ) , and asserted that the piled-up snow on which she fell was approximately five or six inches high. Ex. A, at 25; EBT, at 47. Plaintiff stated that, when she left the building earlier that evening at about 5 to the curb. P.M., she noticed chat snow had been pushed up EBT, at 45, 53-56, 93-94. Plaintiff did not r e p o r t the accident to NYCHA, did not seek immediate medical attention, and waited one week to see her dentist for alleged injuries to her teeth resulting from the fall. Ex. A, 32-33, 3 8 ; EBT, at 72-74. In addition to plaintiff s testimony, plaintiff provided photographs of the area in which the accident t o o k p l a c e , but t h o s e photographs were taken about one week after the occurrence, and t h e r e had been a snow fall in the interim period, and plaintiff admitted that the photographs do not portray the 2 [* 4] conditions existing at the time or the accident. EBT, at 89-90. It is noted that plaintiff has not produced any medical records to substantiate her claim. In support of its motion, NYCHA has attached the official governmental climatological data for the month of December 2007. Ex. H . This report shows that, on December 2 , 2007, 13 days before the alleged accident, 1.4 inches of snow fell and, the next d a y , the temperature reached a high of 47 degrees. On December 5 , 2007, . 3 incheS of snow fell, and, from December 2 to December 13, 2007 the temperatures went above freezing every day. Between Decemher 9 and December 13, 2007, it rained every day, a n d on December 12, 2007, the temperature reached a high of 52 degrees. On December 13, 2007, two days before the accident, a total of .2 inches of snow f e l l , followed by periods of rain. Michael Johnson (Johnson), NYCHA s supervisor of housing ground keepers at plaintiff s building, was deposed in this matter and described the procedures used to remove snow from the area around the building in question. Johnson EBT, at 21-2. Johnson testified that motorized equipment is used to clear snow 0. 1 ice f r o m the sidewalk when there is an accumulation of one to one a n d a half inches, and that such removal is recorded in a snow and removal log. Id. at 33-34, 37-40, 50-51. Tf the depth The data was collected from Central Park, which is a p p r o x i m a t - e l y 1 . 2 5 miles from where the accident took place. 3 [* 5] . of the snow is below one-and-a-half inches, NYCHA clears the area w i t h shovels and salt. Id. at 26, 34-35. All of the information regarding snow removal and weather conditions are recorded in the snow removal log by Johnson. snow removal I d . at 50-52. According to the log (Ex. I ) , the only day that any snow removal action was taken for the month of December 2007 was on December 16, the day after the accident, to remove sleet that fell on the 16th, and no ice or snow conditions were recorded for the entire period. On t h e day of the accident, Johnson was working at the b u i l d ~ n g from 8 before he left. AM. to 1 P M., and inspected the area shortly Id. at 8-10. In addition to his deposition testimony, Johnson has provided an affidavit in support of the motion, in which he avers that, had he noticed snow or ice on the g r o u n d , he would have had the staff remove it and would have recorded i t , and there is no such record in the log. Johnson also stated that the grounds are regularly inspected several times each day. However, Johnson did state that, apart from the l o g , he had no independent recollection of the conditions of the area a r o u n d t h e building for t h e date in question. NYCHA has a l s o provided,the affidavit of George Wright (Wright), a certified consulting meteorologist (Ex. I), who o p i r i e d , with a reasonable degree of meteorological certainty, that the s . i d ~ w a l k in front of the building where plaintiff 4 [* 6] alleges that the accident took place was dry with no snow or ice present at approximately 9 P.M. on December 15, 2007. Wright based his expert opinion on the following information: plaintiff s EBT and the transcripts from her 50-H hearing; the verified bill of particulars; the EBT of Johnson; and the o f f i c i a l climatological data. In opposition to the instant motion, plaintiff states that, according to the building s daily log books (Opp., Ex. A), there was snow removal performed at the building on December 2 , 2007, that snow removal equipment was distributed on December 12, 2007, and that a meeting was held on t h e morning of December 13, 2007 to address snow rernova1.I In reply, NYCHA says that, in her opposition, plaintiff fails to proffer any evidence that corroborates her testimony or which r e f u t e s NYCHA s proof. Further, all of the evidence, including the work log relied upon by plaintiff, indicates that there was no snow or ice on the ground for at least 10 days prior to Ilercmber 15, 2007, and the only evidence refuting this c l a i m 1s p l a i n t i f f s self-serving testimony. Moreover, NYCHA maintains that the photographs are inadmissible since they were taken several days after the accident, snow had fallen in the interim, P 1 . a i n l i f f also says that the log indicates snow removal on December 6 , but the court notes that the log indicates that cdluium wds placed on an icy spot at a different NYCHA building than the address at which plaintiff allegedly f e l l . 5 . . . . [* 7] and plaintiff conceded that they did not represent the curb at the time of the occurrence. DISCUSSION The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of f a c t from t h e case [internal quotation marks and citation omitted] . (1 D e p t 2006). Santiago v Filstein, 35 AD3d 184, 185-186 The burden then shifts to the motion s opponent to present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact. Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 ( l s t Dept 2006) ; see Zuckerman v C i t y o f N e w Y o r k , 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable f a c t , the motion f o r summary judgment must be denied. See Rotuba Extruders, I n c , v Ceppos, 46 NY2d 223, 231 (1978). A n y 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. CPLR ยง4528. An expert may permissibly conclude, based on the weather conditions, that it would have been impossible for there to have been a precipitation-related ice or snow condition in the vicinity of plaintiff s fall. Perez v C a n a l e , 50 AD3d 437, 437 ( l s t Dept 6 [* 8] 2008); D a l e y v Jane1 Xowev L.P., 89 AD3d 408 ( l s t Dept 2011); Clapp v City of N e w Y o r k , 3 0 2 AD2d 3 4 7 ( 2 d Dept 2 0 0 3 ) . In opposition to defendant s certified meteorological reports and accompanying expert affidavit, plaintiff has provided no countervailing expert analysis ( s e e generally E s t a t e of B u r k e v P e t e r J. Repetti & Co., 255 A D 2 d 483 [2d Dept 19981; Maust v A r s e n e a u , 116 A D 2 d 1012 [4t Dept 19861). Further, the case relied upon by plaintiff, Massey v Newburgh W. R e a l t y , Inc. ( 8 4 AD3d 5 6 4 [l Dept 20ll]), is clearly distinguishable from the case at bar. In Massey, where the Appellate Division concluded that the defendant s climatological d a t a and expert affidavit were insufficient, as a matter of law, to grant defendant s dispositive motion, t h e climatological report contained data from t h e general geographical region, but not near to where the accident took place; the expert failed to take into account either the plaintiff s testimony, and he d i d not address the photograph of the scene taken a few hours after t h e occurrence; and t h e defendant failed to present any evidence that the area w a s r e g u l a r l y inspected. In addition, in Massey, the plaintiff provided the testimony a n d affidavit of an eye witness. In the instant matter, the climatological report provided by NYCHA was compiled from weather conditions only slightly over one 7 [* 9] mile from the location of plaintiff's accident, Wright's expert affidavit states that, in reaching his conclusion, he considered plaintiff's EBT and 50-H hearing testimony, and Johnson testified that the building's grounds were inspected several times each day. Moreover, the building's snow removal log and daily log books substantiate the assertion that there was no snow removal or snow for over one week prior to the incident in question, Further, there is no witness to the accident to bolster plaintiff's claims.3 Lastly, the court agrees with NYCWA that the photograph of t h e scene of the alleged accident is not admissible. "Photographs may be used to prove constructive notice of an alleged defect shown in the photographs if t h e y are taken reasonably close to the time of the accident and there is testimony that the condition at the time of the accident was substantially as shown in the photographs [internal quotation marks and citation omitted] . I' R i v e r - a v N e w York C i t y T r a n s i t A u t h o r i t y , 22 AD3d 554, 555 (2d D c p t 2005). Tn the case at bar, the photographs were taken several days after the accident, it is uncontroverted that there had been snow in the intervening period, and plaintiff testified that.the photograph d i d not reflect the condition of the curb as of the 3 In Perez v C a n a l e , s u p r a , where the court found f o r the defendant based on climatological data and expert opinion, in addition to the plaintiff's testimony, the plaintiff also provided an affidavit from a friend, which the court found insufficient to overcome the defendant's evidence. '8 [* 10] time of her accident. Hence, the photographs cannot be used to support plaintiff's opposition CONCLUSION Based on the foregoing, it is hereby ORDERED that defendant's motion is g r a n t e d and t h e complaint is dismissed; and it is further ORDERED that the C l e r k is directed t o ' e n t e r judgment accordingly. Dated: October 12, 2012 ENTER : Shlomo Hagler, J.S.C. FILED NEW YORK COUNTY CLERK'SOFFICE 9
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