Kamara v Markham Gardens L.P.

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Kamara v Markham Gardens L.P. 2013 NY Slip Op 30117(U) January 27, 2013 Sup Ct, NY County Docket Number: 104324/11 Judge: Cynthia S. Kern 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. iNNED ON 112412013 [* 1] SUPREME COURT QF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART Justice . . . __ Index Number : 104324/2011 KAMARA, MOSES vs. MARKHAM GARDENS SEQUENCE NUMBER : 001 INDEX NO. YOTtON DATE MOTION SEQ. NO. SUMMARY JUDGMENT , were read on this motion tolfor The following papers, numbered 1 to Notice of MotionlOrder to Show Cause Answering Affidavits - Affidavits - Exhibits IW s ) . 1Wd. IW s ) . . - Exhibits Replying Affidavits Upon the foregoing papers, it is ordered that this motion is JAN 2 4 2013 NEW YORK COUNTY CLERK'$ OFFICE ,J.S.C. 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... MOTION I : S ................................................ x' CASE DISPOSED GRANTED 0SETTLE ORDER 0DO NOT POST 0 NON-FINAL DISPOSITION DENIED 0GRANTED IN PART 0OTHER 0SUBMIT ORDER aFIDUCIARY APPOINTMENT 0REFERENCE [* 2] h Index No. 104324/11 Plaintiff, DECISION/ORDER -against- MARKHAM GARDENS L.P. and PROGRESSIVE MANAGEMENT OF NY CORP., HON. CYNTHIA S KIERN, J S C . ... ht3Jvh qf & . COUrJ7-y~ Recitation, as required by CPLR 22 19(a), of the papers considered in the review of &%?&fWlQ for : Papers Numbered Notice of Motion and Affidavits Annexed .................................... Answering Affidavi........................................................................ Replying Affidavits.. .................................................................... Exhibits...................................................................................... -~ 1 2 3 4 ~ Plaintiff Moses Kamara commenced the instant action to recover damages for personal injuries he allegedly sustained when he slipped and fell on snow and ice on the walkway in front of his apartment located at 32 Markham Lane, Staten Island, New York on January 12,2011. Defendants Markham Gardens L.P rMarkham ) and Progressive Management of NY Corp. ( Progressive ) now move for an order pursuant to CPLR $3212 granting t e summary hm judgment. For the reasons set forth below, defendants motion is granted. The relevant facts are as follows, Plaintiff alleges that on January 12,201 1 at approximately 2:OO p.m., he slipped and fell on snow and ice while traversing the walkway in 1 . [* 3] front of his apartment. It is undisputed that it snowed from January 11,2011 through the morning of January 12,2011 and the meteorological records indicate that the snowfall stopped at approximately 6:OO a.m. on January 12,201 1 although plaintiff testified that the heavy snow stopped falling at approximately 1:00 p.m or earlier that day. Although plaintiff testified that he did not observe anyone f o the apartment complex removing any snow from either the rm sidewalk or the walkway on the day of his accident, he testified that snow had been removed f o the walkway prior to his fall. rm A defendant who moves for summary judgment in a slip and fall case has the initial burden of making aprima facie showing that it did not cause the condition and that it did not have actual or constructive notice of the condition. See Branham v. Loews Orpheum Cinemas, 3 1 A.D.3d 3 19 (1st Dept 2006). TOconstitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant s employees to discover and remedy it. Gordon v American Museum of Natural History, 67 N.Y.2d 836,837-838 (1986). Moreover, a prima facie case of negligence must be based on something more than conjecture; mere speculation regarding causation is inadequate to sustain the cause of action. Conclusory allegations unsupported by evidence are insufficient to establish the requisite notice for imposition of liability. See Mundel v 370 Lexington Ave., LLC, 32 A.D.3d 302,303 (lSt Dept 2006). In the instant action, defendants have established their prima facie right to summary judgment on the ground that they did not cause the condition on which plaintiff slipped and fell. Esther Alexander, Property Manager for Markham, testified that Markham maintains a snowremoval policy which requires snow removal after 1 or more of snow accumulated on the 2 [* 4] sidewalks and calcium chloride salt will be applied to all sidewalks, porches and walkways. Ms. Alexander testified that snow removal was conducted by the maintenance.staff on January 12,20 1 1. Plaintiff also testified that snow had been removed f o the sidewalk and walkway rm prior to his fall. Further, Terrence Theroulde, a maintenance technician employed by Markham, affirmed that ...between 8 a.m. and 10 a.m. we engaged in snow removal f o the walkway rm where plaintiff alleges that he fell. During the snow removal activities, we also applied calcium chloride to the walkway and sidewalks in an effort to prevent ice from forming. Finally, the Incident Report filled out subsequent to plaintiffs accident confirms that the maintenance staff worked from 7:OO a.m. until 8:OO p.m. on January 12,201 1 to clear pathways throughout the property and distribute salt around the site. In response, plaintiff has failed to raise an issue of fact as to whether defendants caused the condition. Plaintiffs assertion that defendants caused the condition because they did not place salt on the walkway prior to plaintiff s accident is without merit. The only evidence plaintiff presents to support this assertion is that when plaintiff fell, neither he nor the other residents who offered him help saw any salt on the walkway. However, Mr. Theroulde affirmed that after plaintiffs accident, he conducted an inspection of the location and determined that the salt that [defendants] had applied that day had been washed away by water which was caused by snow melting off the roof of the building, traveling down the walkway and washing away the calcium chloride which had been applied that morning. Further, the fact that no salt was visible at 2:OO p.m. does not raise an issue of fact as to whether defendants placed salt on the walkway at 1O:OO a.m. Thus, defendants motion for summary judgment on the ground that they did not create the condition is granted. 3 [* 5] Additionally, defendants have established their prima facie right to summary judgment on the ground that they did not have actual or constructive notice of the condition. Defendants have established that they did not receive any complaints about snowy or icy conditions on the walkway where plaintiff fell. Mr. Theroulde affirmed that [alt the time [defendants] completed [the snow removal] process, no ice or snow remained on the walkway and [they] received no notice of any snow or ice condition on any sidewalk prior to Mr. Kamara s fall. Further, Mr. Theroulde has affirmed that no notice was received ...from anyone that this snow melt condition was occurring or that the water which was melting on the roof of the building was causing the applied salt to be washed away. In response, plaintiff has failed to raise an issue of fact as to whether defendants had actual or constructive notice of the condition. As an initial matter, plaintiff has failed to show that he complained to anyone about snow or ice on the walkway prior to his accident. Further, plaintiff has failed to show that defendants knew about the icy condition after they shoveled and salted the walkway in the hours prior to plaintiffs accident. Moreover, to establish constructive notice of an alleged defect, it must (1) be visible and apparent and, (2) exist for a sufficient length of time prior to the accident to permit (a) discovery of the defect and (b) time to remedy the defect. See Gordon, 67 N.Y.2d at 837-38. As an initial matter, plaintiff has failed to raise an issue of fact as to whether the defect was visible and apparent. Plaintiffs own testimony demonstrates that the snow or ice on which he fell was clearly not visible as he testified that he didn t observe anything until [he] slip[ped] and that before he fell, he looked on the ground...[he] was cautious but that he saw nothing. Further, plaintiff has failed to raise an issue of fact as to whether the snow or ice on which he fell existed for a sufficient length of time prior 4 [* 6] to his accident to allow defendants to discover the condition and allow for time to remedy the condition. Any finding as to when the snow or ice developed would be based solely on speculation which is not enough to support an allegation of constructive notice. See Penny v. Pembrook Mgmf., 280 A.D.2d 590 (2d Dept 2001)(holding that because injured plaintiff testified that she did not see patch of ice in parking lot anytime before her accident, any finding as to when the ice patch formed is pure speculation, and thus insufficient to support allegation of constructive notice of the ice patch.) Plaintiff's assertion that defendants' placement of salt on the walkway after plaintiff's accident is evidence of defendants' negligence and should defeat summary judgment is without merit. Evidence of subsequent measures taken by a defendant to remedy a defective condition complained of by a plaintiff is inadmissible to prove negligence. See Hualde v. Otis El. Co., 235 A.D.2d 269 (1 Dept 1997)("evidence of subsequent repairs is not discoverable or admissible in a negligence case."). Further, the court declines to address that portion of defendants' motion for summary judgment on the ground that a storm was in progress at the time of plaintiff's accident as the court has already granted defendants' motion on other grounds. Accordingly, defendants' motion for an Order pursuant to CPLR 5 32 12 granting them summaryjudgment is granted. The Clerk is directed to enter judgment in favor of defendants and against plaintiff. This constitutes the decision and order of the court. Dated: \\>>I 1 3 f Enter: - . J.S.C. 5 -. . .. . .

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