Thompson v Stewart
Annotate this CaseDecided on December 17, 2008
Supreme Court, Kings County
Stephanie Thompson, Plaintiff,
against
Oswald Stewart and Andrew Francis, Defendants.
12179/07
ATTORNEYS FOR PLAINTIFF
STEPHANIE THOMPSON
JOHN E. HEADLEY & ASSOC.
140 BROADWAY, 46TH FLOOR
NEW YORK, NEW YORK 10005
(212) 858-7751
ATTORNEY FOR DEFENDANTS
OSWALD STEWART & ANDREW FRANCIS
166 LAUREL ROAD, SUITE 203
EAST NORTHPORT, NEW YORK 11731
(631) 757-4493
Martin Schneier, J.
This is an action to recover damages for personal injuries allegedly sustained by
plaintiff, Stephanie Thompson ("Thompson") when she allegedly slipped and fell at the premises
located at 156 Albany Avenue, Brooklyn, New York (the "premises"). The premises were owned
by defendants Oswald Stewart ("Stewart") and Andres Francis ("Francis"). Defendants move for
summary [*2]judgment pursuant to Section 3212 of the CPLR.
Background
Thompson alleges that on Monday, March 19, 2007 at approximately 8:00 AM she fell on an exterior stairway leading from the front porch to the adjacent sidewalk due to the accumulation of ice on the stairs. Plaintiff asserts that the ice formed as the result of snow that had accumulated on the overhead awning melting, and the water dripping off the awning, onto the stairs, and freezing. Thompson was a tenant at the premises. Plaintiff testified at her deposition, in pertinent part, as follows:
Q. At the moment your accident happened, did you
slip, trip or something else?
A. I just fell.
Mr. Headley: Do you understand what she is asking?
Did you slip or something?
Q. Or did you trip or lose your balance or something else?
A. There was ice on the steps, yes.
Mr. Headley: Did you slip on something or trip on
something else as you were going down the stairs? The witness:As I was walking down the steps I felt the ice and I just
fell.
Mr. Headley: did you trip on the ice, did you slip on the ice or
The witness: I slipped on the ice.
(Deposition testimony of Stephanie Thompson, April 14, 2008, p.47 lines 13-25; p 48 lines 2-8).
Plaintiff further testified that it snowed "a lot" on "Friday night into Saturday night" before the Monday morning of this accident.
Plaintiff testified that she complained to both defendants of this recurring ice condition on the stairway steps before the accident on two or three occasions as early as 2006. (Deposition testimony of Stephanie Thompson, supra, pp. 30-37)
Francis, denied ever receiving any complaints from the plaintiff regarding ice accumulation on the exterior stairs of 156 Albany Avenue. Francis further also denied receiving any complaints from the plaintiff with regard to melting snow dripping off the awning and falling unto the stairs and forming a sheet of ice on the stairs (Deposition testimony of Andrew Francis, April 28, 2008, pp. 29-30).
Stewart denied ever receiving any complaints from any of the tenants "regarding snow and
ice removal from the steps at 156 Albany Avenue" or "concerning melting ice or snow on the
awning dripping onto the stairs and [*3]forming a sheet of ice on
the stairs" (Deposition testimony of Oswald Stewart, April 28, 2008, p. 11).
Discussion
It is well-settled that a defendant property owner will only be held liable in a slip-and-fall accident caused by ice when he created this dangerous condition or had actual or constructive notice of this condition. (Zabbia v Westwood LLC, 18 A.D3d 542 [2d Dept 2005]).
It is also well-settled that "a property owner who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of that condition" (Anderson v. Central Val. Realty Co., 300 AD2d 422 [2nd Dept 2002]), Erikson v. J.I.B.Realty Corp. 12 AD3d 344, [2d Dept. 2004]). Thus, a defendant moving for summary judgment in a slip-and fall case has the initial burden of establishing its prima facie entitlement to judgment as a matter of law through evidence that it neither created the hazardous condition nor had actual or constructive notice of its existence (Brenda Stropel v Walmart Stores Inc. 53 AD3d 651 [2nd Dept 2008]). Once the defendant has satisfied this obligation, the burden shifts and "the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action" (Zuckerman v. City of New York, 49 NY2d 557, 560 [1980]; GTF Mktg v. Colonial Aluminum Sales, 66 NY2d 965 [1985]). "Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture, or speculation" (Morgan v. New York Telephone, 220 AD2d 728, 729 [2d Dept 1995]. Furthermore, the court must draw all reasonable inferences in favor of the non-moving party, and may not pass on issues of credibility (Negri v. Stop and Shop, 65 NY2d 625, 626 [1985]; Rizzo v. Lincoln Diner Corp., 215 AD2d 546 [2d Dept 1995]).
Defendants' first ground for summary judgment is that the plaintiff's testimony that she slipped on ice on the stairs is speculative. This argument is based on the plaintiff's deposition testimony that she did not see what she slipped on. Plaintiff clearly testified, however, that she slipped on ice on the steps. This was a reasonable inference based on the plaintiff's observations of the conditions and her sensations when she slipped. Accordingly, the motion for summary judgment on this ground is denied.
Defendants also argue that they are entitled to summary judgment because they had no notice
of the defective condition. Here, defendants satisfied their initial burden based on their
deposition testimony wherein they denied having any prior notice of the alleged recurring ice
condition on the exterior steps [*4]of the premises as the result of
water dripping from the awning. Plaintiff, on the other hand, testified that she had complained to
the defendants "a couple of times," beginning in 2006, about the accumulation of ice on the
exterior steps caused by the dripping of the melted snow from the awning. Thus, plaintiff raises a
triable issue of fact as to whether the defendants had actual notice of the alleged recurring
dangerous ice condition on the exterior steps of the premises which can only be resolved at trial.
Conclusion
Based on the foregoing, the defendants' motion for summary judgment is denied.
This constitutes the Decision and Order of the Court.
_______________________
December 17, 2008J.S.C.
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