Zempoalteca v Ginsberg

Annotate this Case

Download PDF

Zempoalteca v Ginsberg 2017 NY Slip Op 30514(U) March 21, 2017 Supreme Court, Kings County Docket Number: 504763/14 Judge: Debra Silber Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: KINGS COUNTY CLERK 03/21/2017 03:46 PM 1] NYSCEF DOC. NO. 42 INDEX NO. 504763/2014 RECEIVED NYSCEF: 03/21/2017 At an lAS Term, Part 9 of the Supreme Court of the State of New York, held in and fo r the County o f Kings, at the Courthouse, at C ivic Center, Brooklyn, New York, on the 2 1st day of March, 20 17 PR E S E T: H ON. DEBRA S ILBER, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X FEVM IN ZEMPOAL TECA, Decisio n I O rder Pla intiff, Index No. 504763/14 Mot. Seq. #4 - against BONNIE GINSBERG and RO BERT G INSBERG, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X The fo ll owi ng papers numbered 1 to 5 read on this motion: Papers Numbered Notice of Motion/Order to S how Cause/ Petition/Cross Moti on an d A ffidavits (Affirm ations) Annexed._ _ _ _ _ _ _ __ I - 2 Opposing Affidavits (Affirmations)._ _ __ _ _ _ __ 3 - 4 Reply Affidavits (Affirmations)._ _ __ _ __ _ __ 5 Other Papers_ _ __ _ __ _ _ _ _ _ _ __ __ Upon the foregoing papers in motion sequence number 4, defendants Bonnie Ginsberg and Robert Ginsberg move for an order, pursuant to CPLR 32 12, granting them summary judgment and dismissing the complaint of plainti ff Fevmin Zempoalteca a/k/a Fevmin Zcrnpoaltecatl. For the reasons which fo llow, the motion is denied. Facts and Procedural Background Plainti ff commenced this action on May 26, 20 14 seeking to recover damages for injuries allegedly sustained, at approx imately 3:30 p.m. on Jan uary 10, 20 14, when he slipped 1 of 10 [*FILED: KINGS COUNTY CLERK 03/21/2017 03:46 PM 2] NYSCEF DOC. NO. 42 INDEX NO. 504763/2014 RECEIVED NYSCEF: 03/21/2017 and fell on ice on the sidewalk in front of a three-family dwelling owned by defendants and located at 272 77th Street in Brooklyn (the Property). Defe11da11ts' Co11te11tio11s In support of their motion, defendants allege that an ice storm began in their neighborhood. at approximately 3 :00 p.m. on January 10, 2014, as Mr. Ginsberg was driving home from work. Because the sidewalks were icy when he arrived at the Property, he began sprinkling ice melt. Plaintiff fell at about this time. Defendants contend, among other things. that they are entitled to summary judgment dismissing the complaint because liability cannot be imposed until they have had a reasonable opportunity to alleviate the icy condition after the storm ended, and here, the storm was still in progress when plaintiff fell. Alternatively, and to the extent that it may be argued that plaintiffs accident occurred after the storm had ended, defendants assert that they did not have a sufficient amount of time to remedy the icy condition after the storm ended. Jn support of their contentions, defendants rely upon a copy of a surve illance video that shows a person using an umbrella immediately after the time of plaintiffs accident, a second person falling on the same sidewalk, and moving cars with their windshield wipers moving, to corroborate the ir claim that the storm had not yet ended. Defendants also rely upon certified copies of various Meteorological Records on file at the Nationa l Climatic Data Center, United States Department of Commerce, for the period from January 8, 2014 through January I 0, 20 I 4. Defendants contend that these records indicate that there was no precipitation, ice or snow in the area on January 8th and 9th, and that on January I 0th, 2 2 of 10 [*FILED: KINGS COUNTY CLERK 03/21/2017 03:46 PM 3] NYSCEF DOC. NO. 42 INDEX NO. 504763/2014 RECEIVED NYSCEF: 03/21/2017 precipitation in the form oflight snow, sleet, and freezing rain fell , starting from around 5:30 - 6:00 a.m. through 8:50 a.m. 1 Then, after 8:50, precipitation fell frequently in the form of light snow, sleet, light freezing rain and drizzle through around 11 :40 a.m . and after 11 :40 a.m., precipitation fel l frequently in the fom1 of light rain and drizzle through the remainder of the day. Defendants assert that approximately 0.1 - 0.3 inches of snow, sleet, and freezing rain fel l on this day; the high temperature was near 37 degrees and the low temperature was near 25 degrees. Plaintiff's Contentions In opposition, plaintiff argues that the sur eillance video offered by defendants doesn' t begin until aRer he fell, si nce it shows him returning to retrieve his phone and a second person fall ing. Plaintiff also asserts that although it was cold at the time that he fel l. it was not raining or snowing and it was dark. He further alleges that he did not see the ice on the sidewalk until after he fe ll. In addition, plaintiff alleges that he noticed, after he fell, that the ice on which he slipped appeared to be dirty, black and discolored; some patches appeared to have frozen footprints in them. Plaintiff also claims that he noticed what appeared to be salt or some other substance used to melt ice and snow; the substance appeared to have allowed some of the ice patches to melt and re-freeze. 1 Mr. Ginsberg testified at his EBT that there was no precipitation until after he left for work, and that it was 35 degrees and clear when he left for work. 3 3 of 10 [*FILED: KINGS COUNTY CLERK 03/21/2017 03:46 PM 4] NYSCEF DOC. NO. 42 INDEX NO. 504763/2014 RECEIVED NYSCEF: 03/21/2017 The law A party who possesses or controls real property is under a duty to exercise reasonable care under th e c ircumstances (Basso v Miller, 40 N Y2d 233 [1 976]). ·'A defendant who moves for summary judgment in a s lip-and-fall case has the initia l burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its ex istence for a suffi cient length of time to discover and remedy it'' (Yioves v Tl. Maxx, 29 AD3d 572, 572 [2"d Dept 2006]). "To constitute constrnctive notice, a defect must be visible and apparent and it must ex ist for a suffic ient length of ti me prior to the accident to permit fdefendants] to discover and remedy it .. (Gordon v American Museum of Natural History , 67 NY2d 836, 837 [19 86]). To meet the burden of demonstrating constructive notice, a defendant is also required to offer some evidence as to w hen the accident site was last cleaned or inspected prior to the plaintiff s fall (see e.g. Giantomaso v T. We iss Realty, 142 AD3d 950, 951 [2"d Dept 201 6]; Birnbaum v New York Racing Assn. , 57 AD3 d 598, 598-599 [2"d Dept 2008]). Further, .. la] defendant mov ing for summary judgment in an action predicated upon the presence o f snow or ice has the burden of establishing, prima fa cie, that it neither created the snow and ice condition that all egedly caused the plaintiff to fall nor had actual or constructi ve notice of that conditi on" (Talamas v J\lfetropolitan Transp. Auth. , 120 AD3 d 1333, 1334 [2"d Dept 2014]). T he court has explained that: "An owner of real property, or a party in possession or control thereof, may be liable for a hazardous snow or ice cond ition existing on the p roperty as a result of the natural accumulation of s now or ice only upon a show ing that it had 4 4 of 10 [*FILED: KINGS COUNTY CLERK 03/21/2017 03:46 PM 5] NYSCEF DOC. NO. 42 INDEX NO. 504763/2014 RECEIVED NYSCEF: 03/21/2017 actual or constructi ve noti ce of the hazardous cond ition and th at a suffi cient period of time elapsed since the cessation of th e precipitation to permit the party to remedy the condition." (Lee-Pack v. I Beach I 05 Assoc., LLC. 29 AD3d 644 [2nd Dept 2006] [internal citations omitted]). ·'Under the storm in progress ru le, a property owner will not be held responsible for acc idents occurring as a res ult of the accumulation of snow and ice on its premises until an adequate period of time has passed fo llowing the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the stonn" (Bednoski v County ofSuffolk, 145 AD3d 943 [20 16], citing Dume/a-Felix v FGP W St. , LLC, 13 5 AD3d 809, 810 [2n d Dept 20 16]; McCurdy v Ky ma Holdings, LLC, 109 J\D3d 799 [2 n Dept 201 3]; Smith v d Christ 's First Presbyt. Church ofHempstead, 93 AD3d 839, 840 [2nd Dept 201 2]). Further, '" if the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, th en the rati onale for continued delay abates, and commonsense would dictate th at the rul e not be applied"' (Rabinowitz v Marcovecchio, 119 AD3d 762, 762 [2nd Dept 20 14], quoting Mazzella v City of New York, 72 AD3d 75 5, 756 [2"d Dept 201 O] [internal quotation marks omitted]). On a motion for summary judgment. the question of whether a reasonable time has elapsed may be decided as a matter of Jaw by the co urt. based upon the circumstances of the case (see Valentine v City of New York, 57 NY2d 932, 933-934 [1982]). As is also relevant herein, it has been held that: ''[l] f a storm is ongoing, and a property owner elects to remove snow, it must do so with reasonable care or it could be held liable for creating a hazardous conditi on or exacerbating a natural haza rd created by the storm. In such an instance. a 5 5 of 10 [*FILED: KINGS COUNTY CLERK 03/21/2017 03:46 PM 6] NYSCEF DOC. NO. 42 INDEX NO. 504763/2014 RECEIVED NYSCEF: 03/21/2017 property owner moving for summary judgment in a slip-and-fall case must demonstrate. in support of its motion, that the snow removal efforts it undertook neither created nor exacerbated the all egedly hazardous condition which caused the plaintiff to fall."' (Anderson v Landmark al Eastview, l 29 AD3d 750, 75 1 [2 11d Dept 2015]). Discussion As a threshold issue, the court rejects plaintiffs claim that poor lighting was a factor causing his accident. Since plaintiff fell at 3:30 in the afternoon, during daylight hours, this contention is found to be patently incredible. The court finds, however, that defendants fail to establish their prima facie entitlement to sum mary judgment. In the first instance. the climatological data submitted by defendants is insufficient to establish, as a matter of law, that a storm was still in progress at the time that plaintiff fell. More specifically the data was collected from nearby locations, i.e., Central Park in New York City. John F. Kennedy International Airport, La Guardia International Airport and Newark Liberty International Airport. Data for Central Park indicates that snow in the amount of .0 I and .02 inches accumulated between 8:51 a.m. and 9:32 a.m.; rain, mist and unknown precipitation of .05 inches accumulated between then and I :49 p.m. , and temperatures increased from 32 degrees at 8:24 a.m. to between 35 and 37 degrees for the remainder of the day. Data for La Guardia Airport indicates that the last accumulation of freezing rain . in the amount of .04 inches, occurred at I 0:51 a.m. ; after that, only drizzle and mist accumulating to .0 I inch at 2:44 p.m. was reported; and the temperature remained at or above 32 degrees. Data for Kennedy Airport reveals a brief period of snow accumulating .05 inches at 9:51 a.m ., with mist, drizzle and rain falling the remainder of the 6 6 of 10 [*FILED: KINGS COUNTY CLERK 03/21/2017 03:46 PM 7] NYSCEF DOC. NO. 42 INDEX NO. 504763/2014 RECEIVED NYSCEF: 03/21/2017 day. accumulating between a trace amount up to .02 inches~ temperatures stead ily rose from 32 degrees at 8: 13 a.m. to 37 to 38 degrees for the remainder of the day. Data for Newark Airport indicates that trace amounts of snow fe ll between 5:40 a.m. and 8:32 a.m.; freezing rain, ice pellets and mist in amounts of up .0 I to .06 inches fell between then and 11:01 a.m.; mi st and dri zzle. with little, if any accumulation, fell for the remainder of the day; and the temperature remained at 30 or 31 degrees until 11 :0 1 a.m., when temperatures began to climb above freezing to 34 to 35 degrees for the remainder of the day. Accordingly, given the range of weather conditions, precipitation types and amounts and temperatures around the area, a factual issue exists as to what the conditions were at defendants' property and whether the storm had ended at the time that plainti ff fell. Jn addition, the court notes that the climatological data relied upon by defendants indicates that there was no precipitation in Central Park at the time of the accident. Further, Mr. Ginsberg's own testimony at his EBT was that there was no precipitation until after he left for work, and that it was 35 degrees and clear when he left for work. Thus, si nce the evidence submitted by defendants for four different weather stations are in conflict with each other, and in conflict with defendants own testimony, they cannot establi sh, as a matter of law, that the stonn in progress rule applied (see e.g. Yassa vAwad, 117 AD3d 1037, 1038 [2 11d Dept20I4] ;Abramo v City of Mount Vernon, 103 AD3d 760 761 [2"d Dept 2013]). Similarly, the court finds the surveillance video to be insufficient to establish that an ice storm was still in progress. Jn the first instance, it is not clear from watching the video whether any precipitation was still falling. and if so, in what form. Further, it is not possible 7 7 of 10 [*FILED: KINGS COUNTY CLERK 03/21/2017 03:46 PM 8] NYSCEF DOC. NO. 42 INDEX NO. 504763/2014 RECEIVED NYSCEF: 03/21/2017 to determine if precipitation had tailed off to such an extent that there was no longer any appreciable accumulation, so that the storm in progress rule would not apply (see Rabinowitz, 119 A03d at 762). In addition, because defendants fail to establish when the storm ended, they have not made a prima facie showing that four hours had not elapsed since the storm ended so as to entitle them to the protections of New York City Administrative Code § 16123 2 (see generally Guzman v Broadway 922 Enters., LLC, 130 AD3d 431 [I st Dept 2015]). Further, defendants fail to satisfy their initial burden of establishing that they did not have constructive notice of the alleged dangerous condition. In this regard, defendants allege, in reliance upon the deposition testimony of Ms. Ginsberg, that they always inspect their property for snow and ice. This testimony is insufficient to demonstrate any particularized or specific inspection or procedure in place on the date of the accident, and is therefore insuffic ient to satisfy defendants' burden (see generally Birnbaum. 57 A03d at 598-599). In addition. defendants also fail to make a prima facie showing that their snow remova l efforts undertaken prior to the accident did not create or exacerbate the hazardous condition which allegedly caused plaintiff to fall (see generally Cotter v Brookhaven Mem. Hosp. Med. Ctr. , 97 AD3d 524, 524 [211d Dept 2012] · Kantor v Leisure Glen Homeowners Assn., 95 AD3d 11 77. 11 77 (2"d Dept 20 12]). More specifically, an issue of fact is raised 2 New York City Administrative Code§ 6- 123(a) provides, in relevant part. that "[e]very owner ... having charge of any building or lot of ground in the city, abuning upon any street where the sidewalk is paved, shall, within four hours after the snow ceases to fall ... remove the snow or ice . .. 8 8 of 10 [*FILED: KINGS COUNTY CLERK 03/21/2017 03:46 PM 9] NYSCEF DOC. NO. 42 INDEX NO. 504763/2014 RECEIVED NYSCEF: 03/21/2017 ' ith regard to whether defendants ' efforts to melt the ice 3 made the condition of the sidewalk more dangerous by, for example. exposing a more s lippery surface (see generally Rector v City of New York, 259 AD2d 319. 320 [I st Dept 1999]) or by causi ng snow left by prior removal e fforts to melt and re-freeze (see generally Ming Hsia v Valle , _ AD3d _ , 20 17 NY Slip Op 01193 [2 11<l Dept 201 7]; Lindquist v Scwfogliero, 129 AD3d 789, 790 [2nd Dept 20 15]): Keese v Imperial Gardens Assoc., LLC. 36 AD3d 666, 667 [2nd Dept 2007]). In reaching this conclusion, it is a lso significant to note that Mr. Ginsberg testified at his deposition that his tenants sometimes shoveled the snow before he arrived at the premises during a storm (see generally Anderson, l 29 AD3d at 75 1). Since defendants did not meet their prima facie burden of proof, their motion for summary judgment di smi ssing the complaint is properly denied w ithout the need to consider the adequacy of plaintiffs opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 85 L 853 [ 1985] ; Cotter. 97 AD3d at 525). Moreover. even if defendants had met their burden of proof, issues of fact exist, as di scussed above, that are sufficient to overcome a prima facie case for di smissal. (see e.g. Coons v Sorrentino, 14 5 AD3d 854 [2"d Dept 20 16] [the submi ssions of defendant failed to eliminate all tri able issues as to w heth er an adeq uate period of time passed following th e cessation of the stonn on the morning of the subj ect accident so as to have a llowed it the opportunity to ame liorate the hazards alleged to have 3 The time of plaintiff s accident is alleged to be prior to defendant ' s arriva l home from work, but plaintiff claims he saw an ice melt/salt type substance on the ground. This creates an inference that either defendant spread ice melt/salt on the sidewalk before he left for work or that someone else spread it before he arrived at his home. Defendant testified that his tenants sometimes cleared the snow when he was not at home. 9 9 of 10 [*FILED: KINGS COUNTY CLERK 03/21/2017 03:46 PM 10] NYSCEF DOC. NO. 42 INDEX NO. 504763/2014 RECEIVED NYSCEF: 03/21/2017 caused plaintiff s accident]; Lester v Ackerman, 82 A03d 847 [2"d Dept 2011] [plaintiff raised several issues of fact that precluded summary judgment where she testified at her deposition that it was not snowing or raining at the time of her accident] ; Lotenberg v Long Is. R. R., 34 AD3d 435 [2"d Dept 2006] [in light of the conflict in the testimony of the parties and the climatological data, issues of fact exist as to when the snow fall ceased and whether the de fendant had an adequate opportunity to ameliorate the hazardous condition, if any, caused by the snow fa ll] . Conclusion Defendants ' motion for summary judgment is denied. The foregoing constitutes th e decision and order of the court. E N T E R, Hon. Debra Silber, J.S.C. Hon. Debra Silber Justice Supreme Court 10 10 of 10

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.