Rodriquez v Woods

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Rodriquez v Woods 2013 NY Slip Op 33730(U) February 28, 2013 Supreme Court, New York County Docket Number: 1/03679/09 Judge: Geoffrey D. Wright 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: NEW YORK COUNTY PART 62 GEOFFREY D.S. WRIGHT Justice INDEX NO. 1\03679/09 MOTION DATE - - - FRANCISCA RODRIGUEZ, Pia i ntiff/Petitioner( s) -v WILLIE WOODS, LANA WOODS and THE CITY OF NEW YORK, MOTION SEQ. NO. Defendant(s)/Respondent(s} The following papers, numbered 1 to 2 were read on this motion to/for dismifs the complaint against the City of New York 'i1 F ILED . Notice of Motion/ Order to Show Cause - Affid~A~-, ,x~i~ ... i PAPERS NUMBERED 4 L Answering Affidavits - Exhibits Replying Affidavits Other 2 1 f J Cross-Motion: Yes X No Upon the foregoing papers, it is ordered that this motion/petition by the Defendant City of New York, to dismiss the complaint is granted a/p/o. This case is to be transferred to a non City part. Dated: Feb 28, 2013 ~ GEOFFREY D. WRIGHT A.YSt.6:· Check one: FINAL DISPOSITION X NON-FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 77 [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 62 ------------------------------------------------------------)( FRANCESCA RODRIGUEZ, · Plaintiff-Petitioner(s ), Index # 103679/09 Motion Cal.# Motion Seq. # DECISION/ORDER -against- Pursuant To Present: Hon. Geoffrey Wright Judge, Supreme Court WILLIE WOODS, LANA WOODS and CITY OF NEW YORK, Defendant-Respondent(s), --------------------------------------------------------------)( Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Motion to: dismiss all claims against the City of New York PAPERS Notice of Petition/Motion, Affidavits & Exhibits Annexed Order to Show Cause, Affidavits & Exhibitf Answering Affidavits & Exhibits Annex Replying Affidavits & Exhibits Annexed Other (Cross-motion) & Exhibits Annexed MAR 11 2013 Supporting Affirmation K I LE D NEWVOR · · COUNif CLERdOFFIC& ~ERED 1\;l t C \ 1 I Upon the foregoing cited papers, the Decision/Order on this Mbtion is as follows: Plaintiff Francesca Rodriguez, was injured when she slipped and fell on ice and snow in front of 339 Convent A venue. The City of New York now moves to dismiss the complaint and any cross-claim against it. For the three days prior to the December 23, 2008 accident, snow fell on December 19, December 20, December 21, including sleet and freezing rain on the 2ist. When there is a snow storm, the City is given a nonspecific reasonable amount of time to clean the streets, and then the sidewalks [COOKEv. CITY OF NEW YORK, 300 A.D.2d 338, 751 N.Y.S.2d 536, 2002 N.Y. Slip Op. 09149; CASTILLO v. THE CITY OF NEW YORK, 2003 WL 25669355, "Under Valentine and its progeny and where there is no alleged actual or constructive notice of this precise snow condition, the city has been found to not be liable for an accident occurring as a result of severe snowfall with below freezing temperatures following the snowfall. Martinez v. Columbia Presbyterian, 238 A.D.2d 286, 656 N.Y.S.2d 271 (1st Dept.1997); Cheung v. City, 234 A.D.2d 91, 650 N.Y.S.2d 687 (1st Dept.1996)."] 75 [* 3] Snow on the sidewalk for 72 hours before and accident has been held to insufficient to support a successful claim [EPSTEINv. CITY OF NEW YORI<, 250 A.D.2d 547, 673 N.Y.S.2d 141, 1998 N.Y. Slip Op. 05938, {citing CHEUNGv. CITYOFNEWYORK, 234A.D.2d 91, 650 N.Y.S.2d 687)], see alsoEPSTEINv. CITYOFNEWYORK, 250A.D.2d 547, 673N.Y.S.2d141, 1998 N.Y. Slip Op. 05938]. Complicating things for the Plaintiff is her own speculative statement, in her affidavit, that the icy patch on which she slipped "was one inch thick, flat, hard and dirty, as if it had existed for several days." This is precatory language and a "feigned issue of fact insufficient to defeat motion." [MARZAN v. THE CITY OF NEW YORK, 2011 WL 2138253 (N.Y.Sup.) (Trial Order), 2011 N.Y. Slip Op. 31346(U)]. The cases relied upon by the Plaintiff in opposition to the motion diverge significantly on their facts. In FERRER v CITY OF NEW YORK, 49 A.D.3d 396, 854 N.Y.S.2d 51, 2008 N.Y. Slip Op. 02474, the Plaintiffs expert testified from photographs of the scene. Here the expert's opinion was all speculation. In COOKE v. CITY OF NEW YORK, 300 A.D.2d 338, 751 N.Y.S.2d 536, 2002 N.Y. Slip Op. 09149, there was a question of fact raised by a ten day difference between the last snow fall and the accident. Three days between snow fall and an occurrence seems within the definition ofreasonableness [MARTINEZV. COLUMBIA PRESBYTERIANMEDICAL CENTER, 23 8 A.D.2d 286, 656 N.Y.S.2d 271; EAMAN v CITY OF NEW YORK, 294 A.D.2d 144, 742 N.Y.S.2d 35, 2002 N.Y. Slip Op. 03809, (dissent)]. The motion to dismiss the complaint is granted. This cfititutes the decision and order of the court. "- GEOFFREY 0. WlUGUT Dated: February 28, 2013 ----~A.=--J=S_C'--------- Ff LED l I MAR 11 2013 COUNTYNEW YORI( -.. cteRl<'Soaiite 76

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