Brito v American Broadcasting Cos., Inc.

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Brito v American Broadcasting Cos., Inc. 2012 NY Slip Op 32373(U) September 5, 2012 Sup Ct, NY County Docket Number: 115527/08 Judge: Eileen A. Rakower 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. ANNED ON 911312012 [* 1] -*u SUPREME COURT OF THE STATE O F NEW YORK NEWYORK COUNTY h PRESENT: HON. EiLPEN A. R K AJustice MOTION DATE -V- MOTION SEQ. NO. The following papem, numbered 1 to Notlce of MotlonlOrder to Show Cause Answerlng Affldavib oa 1 , were read on this motlon tcdfor -Affldavlts - Exhlblts IW s ) . INo(s). - Exhlblts I No(s). Replying Affidavits Upon the foregoing papem, It Is ordered that this motion Is w E u1 2 FILED SEP 1 3 2012 COUNTY CLERK'S OFFICE NEWYOW Dated: 3. E ..................................................................... CASE DISPOSED CHECK AS APPROPRIATE: ........................... MOTION IS: GRANTED UDENIED CkECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 1. CHECK ONE: 2. :7- G 12 0DO NOT POST NON-FINAL DlSPOSlflON 0GRANTED IN PART UOTHER 0SUBMIT ORDER uFIDUCIARY APPOINTMENT 0REFERENCE * [* 2] Plaintiff, - against AMERICAN BROADCASTING COMPANIES, INC. and AE3C STUDIOS EAST, INC. Index No. 115527/08 Decision and Order Mot. Seq. No. 001 Plaintiff Octavio Brito brings this action for personal injuries allegedly sustained on March 16,2007 at approximately 5 :15 p.m. when he was caused to slip and fall due to snow and ice accumulated on the sidewalk owned by the defendants located between the entrances of two ABC buildings on Columbus Avenue between West 67th and 66th Streets in the County and State of New York. Defendants American Broadcasting Companies, Inc. ( ABC ) and ABC Studios East, Inc. ( ABC Studios ) move for summary judgment pursuant to CPLR $32 12. Plaintiff opposes. Defendants, in support of their motion, submits the attorney affidavit of Virginia Goodman Futterman. Annexed as exhibits to Futterman s Affidavit are the following: the pleadings, plaintiffs bill of particulars, supplemental bill of particulars, and second supplemental verified bill ofparticulars; plaintiffs deposition transcript; a Google map photo marked at plaintiffs deposition; Occurrence Report; DVD depicting the sleet event and weather conditions as they allegedly existed at the time of the accident; and three certified weather reports. Defendants argue that the Complaint should be dismissed because plaintiff can show no duty owed by ABC to clear any snow, sleet, and/or ice on the sidewalk adjacent to its buildings during the progress of the storm on the day of the accident. Defendants also contend that the efforts taken by ABC to remove snow during the 1 . [* 3] storm were not in the area that plaintiff fell and did not otherwise create or exacerbate any hazardous condition. Defendants argue that Plaintiff cannot establish any factual dispute as to the impact of ABC s snow removal efforts on the condition of the sidewalk in the location where Plaintiff fell, and his claims are appropriately analyzed and dismissed under the storm in progress doctrine. Defendants also contend that dismissal as to ABC Studios is warranted because A B C Studios was not in existence at the time of the alleged accident, but, instead, was first incorporated as a domestic corporation on May 30, 2008. Defendants contend that upon that basis alone ABC Studios should be dismissed from this matter. Plaintiff, in opposition, submits the attorney affirmation of Ashley Shain. Annexed as exhibits to Shah s affirmation are: the pleadings; plaintiffs bill of particulars and supplemental bill of particulars; plaintiffs deposition transcript; deposition transcript of Peter Perillo, the assistant director of facilities management for the ABC premises located between West 66 and 67th Street and Columbus Avenue, 7 Lincoln Square West; deposition transcript of Jeffrey Smith, weatherman for defendants; Haward Operations Snow Removal Work Orders; and the Master Janitorial Services Agreement with Harvard Maintenance. The snow removal guidelines set forth in the agreement state that snow/ice removal is to begin at the start of snowfall and continue until snowfall stops. All sidewalks, driveways and ramps must be maintained in a totally clear and safe condition. Plaintiff contends that summary judgment must be denied because there are triable issues of fact regarding whether defendants caused or exacerbated the dangerous condition of the sidewalk causing or contributing to plaintiffs accident. Plaintiff does not address dismissal of the Complaint as to ABC Studios on the basis that it was not created as an entity and was not in existence on the day of the accident. Plaintiff testified that during the afternoon of March 16, 2007, he was at Columbus Avenue and West 65* Street making a stop for his job with Safety Cleaning. Afterwards, he walked north to the bakery located on Columbus Avenue between 68* and 69* Streets and then was walking back towards his van parked on Columbus and West 65* Street when he fell. A severe storm consisting of snow, ice, and sleet had been in progress since early morning and it was sleeting at the time of the incident, As plaintiff was walking towards Columbus and West 65thStreet, the ramp at the corner of the curb on 67* and Columbus was cleared of snow for approximately six to seven feet. After the ramp, the next forty feet was covered in snow and then there was another cleared patch of approximately seven to eight feet 2 [* 4] c of sidewalk in front of the entryway to the ABC Building between 67th 66thStreet. and After passing over the cleared entryway, plaintiff took about five steps onto white snow before his left foot slipped and he fell to his side onto a patch of ice that had been covered by the snow. When plaintiff fell to the ground, he alleges that underneath the snow was ice. As a result of his fall, plaintiff sustained multiple injuries to his left knee, including meniscus tears that required arthroscopic surgery. Peter Perillo testified that, on the date of plaintiffs accident on March 16, 2007, he was the assistant director of facilities management for the ABC premises located between West 66thand 67'h Street and Columbus Avenue. As a manager, Perillo was responsible for maintenance of the premises, including overseeing snow removal. Perillo testified that on March 16,2007, the maintenance staff worked from 8:OO am through 5:OO pm removing snow, including at the 77 West 66* Street complex which included the entrance to 7 Lincoln Square. Perillo also testified that he gives specific instructions when there is active snow for maintenance staff regarding snow removal. He testified that the maintenance department is required to remove snow and salt continuously during ongoing snow and not to wait until the snowstorm is over to begin clearing. He testified that when there is snowfall continuously accumulating during the hours of 7:OO am and 8:OO am through 5:OO pm, the regular practice of defendants is to continuously remain outside on the sidewalk, removing snow and ice. The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel iy alone is not sufficient to satisfy this requirement. (Zuckerman v. Ct o f N m York, 49 N.Y.2d 557 [ 19801). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 [ 19701). ( Edison Stone Corp.av. 42nd Street Development Gorp* ,145 A.D.2d 249, 25 1-252 [ 1st Dept. 19891). A defendant who moves for summary judgment in a slip-and fall action has the initial burden of making a prima facie showing that it neither created the hazardous condition, nor had actual or constructive notice of its existence. Once a defendant 3 [* 5] establishes prima facie entitlement to such relief as a matter of law, the burden then shifts to the plaintiff to raise a triable issue of fact as to the creation of the defect or notice. Rodriguez v. 705-7 East 1 79IhStreet Housing Development Fund Corp., 79 A.D.3d 518,520 (1st Dept. 2010). [IJt is settled that the duty of a landowner to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while the storm is in progress, and does not commence until a reasonable time after the storm has ended. Espinell v. Dichon, 2008 NY Slip Op. 9638, * 1 (1st Dept. 2008) (citing Pippo v Ct iy ofNew York, 43 AD3d 303,304 [2007]). An owner or lessee of property owes no duty to pedestrians to remove ice and snow that naturally accumulates upon the sidewalk in front of its premises, but, if it undertakes to do so, it can be held liable in negligence where its acts create or increase the hazards inherent in ice and snow on the sidewalks. (Juiz v. Civ ofNew York, 244 A.D. 2d 298,298 [ l st Dept 20071). Defendants establish that a severe storm consisting of snow, ice and sleet had been in progress throughout the day of plaintiffs accident and that it was sleeting at the time of plaintiffs accident. Furthermore, while ABC concedes that it cleared a path in front of entrances to two ABC buildings on Columbus between 67* and 68* Streets during the storm, plaintiff testified that he did not fall on that path. Rather, plaintiff testified that he fell after he passed over the cleared path. Plaintiff claims that Defendants created or exacerbated the alleged dangerous condition where he fell by salting and sanding and then not continuing to do so, thus causing a melting and re-freezing condition that left ice on the sidewalk which was subsequently covered by snow resulting in a hidden icy condition that is more dangerous than simply leaving the snow on the sidewalk. However, plaintiffs claim is not supported by any evidence or testimony (expert or otherwise) and as such is mere conjecture. See Scheer v. Cig ofNew York, 21 1 A.D. 2d 778,778 (1995) ( Speculation, guess and surmise, however, may not be substituted for competent evidence. ); Grob v. Kings Realty Associates, LLC, 4 A.D.3d 394 (2d Dept 2004). There is simply no testimony that, on the area where plaintiff fell, it had been salted, sanded and that such efforts were suspended, allowing a melting and re-freezing. Indeed, the evidence establishes that a storm was in progress and that several inches of sleet had fallen at the time of plaintiffs accident, creating a naturally occurring hazard. 4 [* 6] I Y For the foregoing reasons, it is hereby: ORDERED that defendants ABC Broadcasting Companies, Inc. and ABC Studios East, Inc. s motion for summary judgment is granted; and it is further ORDERED that plaintiff Octavio Brito s action against defendants ABC Broadcasting Companies, Inc. and ABC Studios East, Inc. is dismissed; and it is further ORDERED that Clerk is directed to enter judgment dismissing plaintiff Octavio Brito s action in itsentirety. This constitutes the Decision and Order of the Court. All other relief requested is denied. DATED: 7 /// EILEEN A. M O W E R , J.S.C. FILED SEP 13 2012 5

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