Acco v Mobil Corp.
Annotate this CaseDecided on May 23, 2013
Supreme Court, Queens County
Solomon Robert Acco, Plaintiff,
against
Mobil Corporation and NACMIAS SERVICE CENTER, LLC., Defendants.
24456/2010
Robert J. McDonald, J.
The following papers numbered 1 to 17 were read on this motion by the defendants for an order pursuant to CPLR 3212 granting summary judgment in favor of the defendants and dismissing the plaintiff's complaint:
Papers Numbered
Notice of Motion-Affidavits-Exhibits.................1 - 7
Affirmation in Opposition-Affidavits-Exhibits........8 - 13
Reply affirmation...................................14 - 17
This is an action for damages for personal injuries allegedly sustained by plaintiff Solomon Robert Acco on February 13, 2010 when he slipped and fell on snow and ice at the service station owned by Exxon Mobil Oil Corp. and leased to defendant Nacmias Service Center LLC. Nacmias Service Center, LLC located at 1249 Coney Island Avenue, Brooklyn, New York is owned by the plaintiff's uncle Richard Nacmias. The plaintiff alleges that the defendants were negligent in allowing a dangerous condition of snow and ice to exist on the premises.
The plaintiff commenced this action by filing a summons and complaint on September 27, 2010. Issue was joined on behalf of [*2]Nacmias Service Center by the service of defendant's verified answer on November 1, 2010. A verified answer on behalf of Mobil Oil Corporation was served on December 2, 2010. Plaintiff served a bill of particulars dated September 20, 2011 alleging that the defendants had actual notice of the dangerous condition. Plaintiff states that as a result of the accident he sustained a fractured right ankle and fractured right leg which required an open reduction.
Plaintiff filed a note of issue and certificate of readiness on June 25, 2012. The matter presently appears on the calendar of the trial scheduling part for June 6, 2013.
The defendants now move for an order granting summary judgment and dismissing the plaintiff's complaint on the ground that the defendant cannot be charged with liability for the injuries sustained by the plaintiff because the certified weather records for the date in question show that 10.4 inches of snow fell on February 11, 2010, three days prior to the plaintiff's accident and the defendant was engaged in snow removal from the time the storm occurred until the time the plaintiff slipped and fell on February 13, 2010. Defendants contend that they used reasonable efforts to remove the snow and ice and made the premises safe for customers and employees. Defendant claims that the evidence shows that the plaintiff placed himself in an area where the snow had not yet been cleared so that he could have a conversation with his uncle.
In support of the motion for summary judgment, the defendant submits the deposition testimony of the plaintiff, Solomon Robert Acco, the deposition testimony of the defendant, Richard Nacmias, and a copy of the climatological data for the date in question.
At his examination before trial taken on September 6, 2012, plaintiff Solomon Acco, age 40, testified that his accident occurred on February 13, 2010 at a service station owned by his uncle Richard Nacmias. On that date he went with his girlfriend, Deborah Cohen, to get an oil change for Ms. Cohen's car at Richard Nacmias' Mobil service station. He stated that although it had snowed earlier in the week it was not snowing on the day of the accident and he believed that it had not snowed the day before. He testified that he arrived at Richard's service station in the afternoon although he did not recall the time. He stated that the weather was overcast. He did not remember if it was cold. He stated that he intended to wait while the oil change was being done. When he arrived at the station Richard and his mechanics were present. He parked in front of the third garage bay. When he exited his vehicle there was snow on the ground. He [*3]did not remember how much. There were no snow plows present on the day of that accident. The snow had been cleared only in the areas where customers would fill up for gas. Richard was not shoveling snow when he arrived however, he stated that "there may have been guys shoveling snow." He stated that five minutes after he exited the vehicle he was standing in snow speaking to his uncle Richard. He intended to go look at a Subaru in the rear area of the service station and as he stepped forward his right leg slipped and he fell. Richard was right in front of him. He stated that the area where he fell had not been cleared of snow. Richard then called an ambulance and plaintiff was transported to the emergency room at Maimonides Hospital. When he was released from the emergency room his uncle Richard came to pick him up.
Richard Nacmias testified at an examination before trial on September 11, 2012. He stated that he is the owner of a business known as Nacmias Service, LLC located at 1249 Coney Island Avenue, Kings County. It is located on the corner of Coney Island Avenue and Avenue I. He formed the LLC in 2008 to purchase a Mobil franchise and signed a lease with Exxon Mobil. He stated that the lot measures 100 by 140 and the business operates 24 hours a day, seven days a week. The repair shop is open from 8:00 a.m. until 6:00 p.m. seven days a week. There is also a snack shop on the premises. He stated that he and three employees were working on the date of the accident. He stated that it had snowed the week prior to February 13, 2010. He does not know how much snow there was that week. He stated that he removed the snow himself along with his 2 mechanics using snow shovels. He stated that he removed snow from the premises the day before the accident, February 12, 2010 as well as on the date of the accident February 13, 2010. He stated that he was removing snow from 11:00 a.m. until 2:00 or 3:00 o'clock in the afternoon including the time when Mr. Acco came to the premises. He stated that plaintiff arrived at the service station 20 - 30 minutes prior to the accident. He stated that Mr. Acco parked his vehicle in front of bay number three. After plaintiff parked his vehicle he walked 30 feet over to Richard. Mr. Nacmias stated that there may have been some snow and ice on the ground since there was a storm that week. Although he stated that he used snow melt on the ground, he did not remember if there was snow melt on the ground in the area where plaintiff got out of his vehicle.
Mr. Nacmias also recalled that plaintiff said he came to the station to say hello. He stated that when plaintiff approached him he had a snow shovel in his hand. When asked how long the ice had been there, he stated that it had been there since the last snow storm. He did not recall when the last snowstorm was. He stated that he observed plaintiff lose his balance and fall. He [*4]stated that in the area where plaintiff fell, "there could have been snow and ice in the area." He does not remember what part of the service station he was removing snow from on February 12, 2010. He stated that generally when it first starts snowing he removes snow from the front of the station where the customers come in so they can get to the snack shop and pumps and then he expands the area to cover as much space in the station as possible. He did not remember if the snowstorm during the week had been heavy or light.
The climatological data from La Guardia Airport submitted by the defendant indicates that there had been a ten inch snowfall on February 10, 2010 three days before the accident and no significant snowfall on February 11th, 12th and 13th.
In his affirmation in support of the motion, defendant's counsel, Paul D. Lawless, Esq., contends that the defendants are not liable for the dangerous condition because Mr. Nacmias testified that he removed snow from the premises both the day before and the day of the accident. Counsel asserts that the complaint should be dismissed based upon the fact that the defendants used reasonable efforts to remove snow and ice from the station. Counsel contends that to ask the defendants to remove every inch of snow from their parking lot is simply unreasonable (citing Masotto v Village of Lindenhurst, 100 AD3d 718 [2d Dept. 2012]; Stallone v Long Island RailRoad, 69 AD3d 705 [2d Dept 2010]; Shannon v Village of Rockville Centre, 39 AD3d 528 [2d Dept. 2007]. Defendant asserts that there is no competent evidence to show that the defendants' affirmative acts of negligence caused the alleged dangerous condition. Defendant asserts that pursuant to case law the defendants cannot be held liable for failing to remove all of the snow from the parking lot as this would not qualify as an affirmative act of negligence.
Further, it is argued that there is no proof in the record of affirmative acts of negligence on the part of the defendant in shoveling the service station that caused the condition resulting in the plaintiff's accident. Defendants assert that the evidence shows that the premises were made safe for customers and employees and plaintiff elected to place himself in an area where the snow had not yet cleared so that he could have a conversation with his uncle.
In opposition, plaintiff's counsel, Brian S. Jones, Esq., does not dispute that a 10.4 inch snowstorm fell in Brooklyn on February 10, 2010. However, he claims that plaintiff's testimony to the effect that he did not see his uncle or any of the other employees shoveling snow and that he did not see snow melt in the [*5]area between where plaintiff got out of the car and where Mr. Acco had his accident raises a question of fact as to the reasonable nature of the defendants' efforts to clear snow. Plaintiff claims that there are a number of issues as to the reasonable nature of the defendants' snow removal as there was still a significant accumulation of snow and ice on the premises three days after the snow storm. In addition, the plaintiff submits affidavits from Mr. Acco and his companion, Deborah Cohen, which state that they did not observe any ongoing snow removal efforts at the time of the accident. Plaintiff's counsel claims that even if Mr. Acco knew of the dangerous condition of ice under the snow, that does not relieve the defendant of its obligation to maintain the premises in a reasonable safe condition. Plaintiff states that even if the snow is claimed to be an open and obvious condition, "the fact that a dangerous condition is open and obvious does not negate the duty to maintain premises in a reasonably safe condition but, rather, bears only on the injured person's comparative fault"(Headley v. M & J L.P., 70 AD3d 1312 [4th Dept. 2010]; Garcia v. Mack-Cali Realty Corp., 52 AD3d 420 [1st dept. 2008]; Sportiello v. City of New York, 6 AD3d 421 [2d Dept. 2004]).
Plaintiff's affidavit, dated February 20, 2013, states that the accident occurred at 3:00 p.m. on February 13, 2010. He states that at that time he drove his girlfriend's Toyota to his uncle's service station to get her vehicle's oil changed, to visit with his uncle, and to see if his uncle still had a Subaru station wagon for sale. Plaintiff states that when he drove into the station he observed his uncle and three other employees, none of whom were shoveling snow. His uncle told him the Subaru was still for sale and that it was stored in the corner against the back wall at the far left corner of the gas station. As he turned to his left to go to look at the car, his right leg slipped and he fell to the ground. He states that while he was on the ground he realized that there was ice under the snow. Mr. Acco contends that his uncle conducted business in the back of the premises where cars were stored for sale and repair and he had to walk through a snow covered area to get to that area. He states that he was given no warning or notice of ice under the snow in that area.
Deborah Cohen, plaintiff's companion, submits an affidavit in which she states that she was with Mr. Acco on the date of the accident. She states that a portion of the ground at the service station to the right of her car was covered with snow. She states that she saw no evidence of the application of any salt, sand, or snow melt on the ground She also realized there was a coating of ice on the ground which was fully covered by the snow. She [*6]observed Mr. Acco walk back to the area where the Subaru was parked at which time she saw him slip. She states that although the area by the pumps and snack bar had been cleaned of snow, the access way to the area near to the wall where actual and potential customers could be expected to walk to reach their cars was not cleaned. She contends that there is a question of fact as to whether it was reasonable for the defendant to fail to clean snow and ice three days after the storm had ceased from an area where customers looked at used cars. She states that the record contains questions of fact as to whether it was reasonable for Mr. Nacmias to have avoided shoveling snow from the access area in which Mr. Acco fell and whether it was it reasonable for him to fail to apply sufficient snow melt.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).
Upon review and consideration of the defendant's motion, the plaintiff's affirmation in opposition and the defendant's reply thereto, this court finds that the defendant has failed to make a prima facie case establishing its entitlement to judgment as a matter of law because the evidence submitted by the defendant in support of the motion, to wit, the depositions of the parties and the climatological records demonstrates the existence of triable issues of fact as to whether defendant was negligent (Doxtader v Middle Country Cent. School Dist. at Centereach, 81 AD3d 685 [2d Dept. 2011]). The plaintiff's deposition testimony raised a question of fact as to whether there was a dangerous snow and icing condition at the defendants' service station and whether the defendants' snow removal efforts were reasonable under the circumstances.
An owner of real property has a duty to maintain the property in a reasonably safe condition (see Basso v Miller, 40 NY2d 233 [1976]). A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive notice of it (see Feola v. City of New York, 102 AD3d 827 [2d Dept. 2013]; Cantwell v Fox Hill Community Assn., Inc., 87 AD3d 1106 [2d Dept. 2011]). In order to establish a prima facie case of negligence for a dangerous snow and ice condition, plaintiff must prove that the defendant either [*7]created the condition, or had notice of the condition, and had a reasonably sufficient time after the conclusion of the snowfall or temperature fluctuation to remedy the situation caused by the elements (see Flores v BAJ Holding Corp., 94 ADd 945 [2d Dept. 2012]; Simmons v Elmcrest Homeowners' Ass'n., 11 AD3d 447 [2d Dept. 2004]; Bergen v Carlin, 297 AD2d 692 [2d Dept. 2002]; Penny v Pembrook Mgmt., Inc., 280 AD2d 590 [2d Dept. 2001]).
Here, the defendant testified that he was aware that there was a snowfall the week prior to the accident. In fact, the climatological records submitted by the defendant indicate that there was a 10.4 inch snowfall on February 10, 2010, three days prior to the accident. Defendant testified that he and his employees shoveled the station using hand shovels on the days after the storm, as well as on the date of the plaintiff's accident. Defendant's testimony indicates that he shoveled the main areas first such as the gasoline pumps and snack bar. However, both the plaintiff and defendant testified that the area near the bays and towards the back of the station had not yet been shoveled as of the date of the accident. It is clear that the defendant had both actual and constructive notice of the snow condition in a portion of the station. Nacmias also testified that he was aware that since the snow had been on the ground for a few days, there may have been ice under the snow in the area where the defendant slipped.
Defendant contends that as he had shoveled snow the days following the snowstorm as well as the day of the snowstorm, he cannot be held liable for the accident as he made reasonable efforts to clear the snow and to maintain the premises in a safe condition. Counsel relies on cases cited above that state that he does not have the burden to remove all snow from the premises. However, although the owner is required to remove snow from walkways but is not required to remove all snow and ice from the premises, there are questions of fact as to whether the area in which the defendant slipped was utilized by the public to look at used cars and repaired cars and whether it was foreseeable that members of the public would have utilized the area where defendant fell, which admittedly was covered with snow and may have had ice under the snow. The courts have held that the frequency of the use of the area determines the questions of foreseeability and the owner's duties. Thus, there is a question of fact as to the likelihood of a customer or visitor being present in the area where the snow had not yet been shoveled as the snowy area where the plaintiff slipped was near the bays and near where repaired cars are stored (see Elwood v Alpha Sigma Phi, Iota Ch. of Alpha Sigma Phi Fraternity, Inc., 62 AD3d 1074 [3rd Dept. 2009]; Baczkowski v Zurn, 235 AD2d 894 [3rd Dept. [*8]1997]).
This Court finds that there are also questions of fact as to the reasonableness of the snow removal efforts of the defendant. As the snowstorm had ended three days prior to the accident, there is a questions to whether the area could have been shoveled and covered with ice melt in the three days following the accident especially in view of the possibility of ice in that area. Although defendant testified that he used ice melt in certain areas, he stated that he did not use ice melt in that area where the plaintiff fell. There is also a conflicting evidence in the record as to whether the defendant was in fact shoveling snow from the premises on the day of the accident, whether there was a significant accumulation of snow is public areas of the station, and whether the icy condition could have been remedied in the days prior to the accident.
Therefore, in view of this conflicting evidence as to whether the defendant satisfied its obligation to maintain the premises in a reasonably safe condition, this court finds that the defendants failed to sustain their burden of demonstrating the absence of any material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Van Dina v Olsen, 2013 NY Slip Op 3474 [2d Dept. 2013]; Khamis v CG Foods, Inc., 49 AD3d 606 [2d Dept. 2008]).
Lastly, even if the snow on the parking lot is an open and obvious condition, that bears only on the plaintiff's comparative fault (see Devlin v Ikram, 103 AD3d 682 [2d Dept. 2013]; Zastenchik v Knollwood Country Club, 101 AD3d 861 [2d Dept. 2012]; Clark v AMF Bowling Ctrs., Inc., 83 AD3d 761 [2d Dept. 2012]).
Accordingly, for the reasons set forth above, it is hereby,
ORDERED, that the defendants' motion for an order granting summary judgment dismissing plaintiff's complaint is denied.
Dated: May 23, 2013
Long Island City, NY
______________________________
ROBERT J. MCDONALD [*9]
J.S.C.
OCA e-submission: no Judge E-Mail
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