Dhanraj v Prasad

[*1] Dhanraj v Prasad 2014 NY Slip Op 50933(U) Decided on June 9, 2014 Supreme Court, Queens County McDonald, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 9, 2014
Supreme Court, Queens County

Bena Dhanraj, Plaintiff,

against

Sharda Prasad and SHEERAN PRASAD, Defendants.



8255/2012
Robert J. McDonald, J.

The following papers numbered 1 to 16 were read on this motion by defendants, SHARDA PRASAD and SHEERAN PRASAD, for an order, pursuant to CPLR 3212, granting summary judgment in favor of said defendants and dismissing the plaintiff's complaint:

Papers

Numbered

Notice of Motion-Affidavits-Exhibits....................1 - 8

Affirmation in Opposition...............................9 - 12

Reply Affirmation......................................13 - 16

This is an action for damages for personal injuries sustained by plaintiff, Bena Dhanraj, on January 25, 2011, when she allegedly slipped and fell on black ice on a driveway at the premises owned by the defendants located at 85-48 Parsons Boulevard, Jamaica, New York.

The plaintiff commenced an action for negligence against the defendant homeowners, who are also her nieces, Sharda Prasad and [*2]Sheeran Prasad, by filing a summons and verified complaint on April 18, 2012. Issue was joined by the defendants by service of a verified answer dated July 16, 2012. Plaintiff filed a Note of Issue on December 6, 2013. The matter is presently on the calendar of the Trial Scheduling Part for July 9, 2014.

The gravamen of the complaint, is that the defendants were negligent in the maintenance of their driveway in causing the driveway to remain in a dangerous, unsafe and slippery condition covered with ice, in failing to warn, in failing to inspect, in failing to provide plaintiff with a safe ingress and egress, in failing to properly remove snow and ice, and in improperly shoveling snow at the location. Plaintiff claims that the defendants had constructive notice of the accumulation of snow and ice in the driveway in that the condition existed for such a period of time that defendants, in the exercise of due care, should have recognized and remedied it. Plaintiff claims that the defendants had actual notice of the condition in that the black ice condition was created by improper shoveling of the driveway.

Defendants now move for an order granting summary judgment and dismissing the plaintiff's complaint on the ground that the defendants bear no liability to the plaintiff for negligence because there is no evidence in the record that the defendants created the icy condition, or that defendants had actual or constructive knowledge of the icy condition prior to the plaintiff's accident.

In support of the motion, defendant's counsel, Anne C. Leahey, Esq., submits her own affirmation; a copy of the pleadings; and copies of transcripts of examinations before trial of the plaintiff and the defendants and a copy of the defendants' response to a Notice to Admit dated May 31, 2013 in which defendants Sharda Prasad and Sheeran Presad admit that on January 25, 2011 they owned the subject premises.

Plaintiff, Bena Dhanraj, age 60, a home care attendant, testified that she lives 85-16 Parsons Boulevard, Jamaica, New York, about one block away from where the accident occurred. She stated that the defendants, Sharda Prasad and Sheeran Prasad, the owners of the premises, are her twin nieces, the children of her sister. Her sister lives with her two daughters in the house where the accident occurred. Her mother and father also reside in that home which is located at 85-48 Parsons Boulevard. She states that prior to her accident she visited her mother and father at their house on a daily basis and she was familiar with the property. She never made any prior complaints regarding ice or snow on the property or the manner in which ice and snow was [*3]shoveled or cleared. She states that sometimes Sheeran's husband would help clear the driveway. She never slipped on the driveway before. The accident took place between 7:00 p.m. and 9:00 p.m. On the day of the accident the plaintiff had walked

to her mother's house intending to have dinner. She stated that it had snowed approximately six or seven inches the day before on January 24, 2011. She stated that by the time she woke up on the 25th it had stopped snowing. She walked to the house on the sidewalk without any problems and without slipping. When she arrived at the house she walked across the driveway to get to the back door. She stated that the entire driveway, the length of which is 40-45 feet, had been shoveled before she arrived there. The driveway is wide enough for one car. When she arrived she did not notice ice patches on the driveay while walking on the driveway to the rear door. She entered the house from the rear door, went inside and had dinner. After dinner, as she was leaving to go home, she was walking down the driveway with her younger sister Swarsatie. As she was walking she slipped on a portion of the driveway that was close to the sidewalk right next to the gate. She was looking straight ahead and talking with her sister when her foot slipped on an ice patch and she fell on her right side. After she fell she noticed the ice patches on the driveway which she stated were like black ice. Her sister called for an ambulance and she was taken to Queens General Hospital where she learned that she had sustained several fractured ribs.

Sheeran Prasad testified an at examination before trial on April 3, 2013. She stated that she resides at 85-48 Parsons Boulevard, Jamaica, New York with her husband and her mother, her two sons and her grandfather. She states that she and her sister are the record owners of the subject property. She stated that when facing her house, the driveway is on the left and leads to the back of the house and an unattached garage. She stated that her husband generally did the snow removal for the driveway portion of the house. She stated that she was not home on the evening of her aunt's accident. She did not learn of it until her mother called her at about 11:00 p.m. and told her that her aunt fell. She recalled that it had snowed two days before the accident and that her husband had shoveled the snow in the driveway the morning following the last snowfall. She testified that after he finished shoveling, the driveway was completely clean and there was no snow or ice in the concrete. She stated that there were never any other incidents where people fell prior to the accident. When she arrived home she observed a 12 - 18 inch patch black ice where her aunt slipped. She said the area where the fall occurred was lit from the street lights.

Sharda Prasad testified on April 3, 2013. She states that [*4]she lives at 139-40 87th Drive, Briarwood, New York. Her mother and sister live at 85-48 Parsons Boulevard. She was not at the Parsons Boulevard address when the accident occurred. She learned of the accident when her mother called her that night. She then went to the house. She said it snowed two days before the date of the accident. She stated that it looked as if someone had shoveled the driveway and put the snow on the sides. She did not remember if there was salt on the driveway. She stated that normally someone from the house shovels the driveway and throws salt on it. She saw the patch of black ice near the gate about 24 inches long and 18 inches wide.

Defendants' counsel contends that summary judgment should be awarded to the defendants as a matter of law because they did not create or have notice of the condition which caused the plaintiff's accident (citing Robinson v Trade Lnk Am., 39 AD3d 616 [2d Dept. 2007][a property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice thereof]). Defendants contend that there is no evidence in the record as to how long the black ice was on the driveway before the plaintiff slipped. Counsel states that the only evidence in the record is that snow had fallen at least a full day prior to the accident, that Sheeran Prasad's husband shoveled the driveway after the snowfall, and that there was snow on the sides of the driveway around the time of the accident. Counsel claims that this evidence does not demonstrate that the defendant's husband created the condition because the testimony was that he completely shoveled the driveway after the snowfall and that there was no snow or ice on the driveway after he completed shoveling.

In addition, defendants contends that plaintiff testified that she also saw that the driveway had been shoveled and she testified that she did not see any ice on the driveway when she arrived for dinner and walked the length of the driveway to enter the house through the back door. Thus counsel alleges that the defendants could not have had notice of the allegedly dangerous condition because the driveway was shoveled prior to the accident, that plaintiff did not observe any problems with the driveway when she arrived at the house, that there were no prior complaints of ice on the driveway, and there is no evidence in the record that defendants created the condition that caused plaintiff's accident by improper shoveling. Further, defendants claim that there is no evidence in the record that they had actual notice of the condition that caused the plaintiff to fall. Defendants assert that there was no testimony that anyone [*5]complained to defendants about a dangerous condition involving the driveway prior to the accident (citing Spinoccia v Fairfield Bellmore Ave., LLC, 95 AD3d 993 [2d Dept. 2012][the defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it neither created nor had actual or constructive notice of the icy condition alleged to have caused the plaintiff's fall]; also see Murphy v. 136 N. Blvd. Assocs., 304 AD2d 540 [2d Dept. 2003]). Lastly, defendants claim that there is no evidence in the record that the defect was visible and apparent prior to the accident as the plaintiff testified that she did not see the ice patches when she arrived at the premises at 5:00 p.m. and walked up the driveway to the rear of the house. Thus, defendants contend the plaintiff failed to establish that the icy condition was visible and apparent and existed for a sufficient length of time prior to the accident for the defendants to have discovered and remedied it (citing Silva-Carpanzano v Schecter, 105 AD3d 1030 [2d Dept. 2013]; Robinson v Trade Lnk Am., 39 AD3d 616 [2d Dept. 2007]; Zabbia v Westwood, LLC, 18 AD3d 542 [2d Dept. 2005]).

Counsel concludes that because plaintiff's testimony showed that the black ice condition was not open and obvious and visible and because her testimony failed to establish how long the icy condition existed, defendants as a matter of law did not have constructive knowledge of the dangerous condition that caused her accident and are, therefore, entitled to dismissal of the complaint.

In opposition, Stuart Sears, Esq., counsel for the plaintiff, contends that there are questions of fact as to the defendants' liability for the subject accident, specifically whether the defendants were negligent in their removal of the snow from the driveway from a snow storm which had occurred several days prior to the accident. Counsel submits uncertified climatological records for Queens County from January 2011 indicating that there was a four inch snowfall on January 21, 2011, four days prior to the accident.

Plaintiff claims that the evidence shows that there is a question of fact as to whether the defendant owners acted reasonably and/or created a dangerous condition that caused plaintiff's fall. Counsel states that the evidence shows Sheeran's husband shoveled the driveway the morning after the last snowfall and left snow on the sides of the driveway. Plaintiff submits that if the driveway was properly shoveled there would not have been snow on the driveway. Counsel asserts that the defendant left snow on the driveway that was dangerous to pedestrians and that the existence of the patch of ice raises [*6]questions of fact as to whether the driveway was properly cleaned and shoveled. Plaintiff submits an affidavit in which she states that the concrete driveway looked shoveled but there were areas that were covered with snow and she did not see any salt or sand on the driveway. Plaintiff claims that the fact that the defendants normally used sand and salt but did not use any on this occasion raises a question of fact as to whether the defendants created the dangerous condition on their driveway. Plaintiff also claims that if the defendants used due care and inspected the driveway they would have observed the ice patch during the three day period from the time of the last snowfall and therefore had sufficient time to discover and remedy the condition

"A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence (Cuillo v Fairfield Prop. Servs., L.P., 112 AD3d 777 [2d Dept. 2013]; also see Morreale v Esposito, 109 AD3d 800 [2d Dept. 2013]; Flores v BAJ Holding Corp., 94 AD3d 945 [2d Dept. 2012 ]; Crosthwaite v Acadia Realty Trust, 62 AD3d 823 [2d Dept. 2009]).

Here, the defendants established their entitlement to judgment as a matter of law by demonstrating, prima facie, that they did not create the alleged icy condition or have actual or constructive notice of it (see Gushin v Whispering Hills Condominium I, 96 AD3d 721 [2d Dept. 2012]; Cantwell v Fox Hill Community Assn., Inc., 87 AD3d 1106 [2d Dept. 2011]; Murphy v 136 N. Blvd. Assocs., 304 AD2d 540 [2d Dept. 2003]; Carricato v Jefferson Val. Mall Ltd. Partnership, 299 AD2d 444 [2d dept. 2002). There is no proof in the record that the defendants had actual notice of the condition. There was no testimony from any of the parties which would tend to show that anyone had complained about an icy patch on the driveway at any time prior to the accident.

With respect to constructive notice, there is no proof in the record as to how long the icy condition was in existence prior to the plaintiff's accident. The climatological records submitted by the plaintiff are uncertified and therefore inadmissible for purposes of this motion (see Morabito v 11 Park Place LLC, 107 AD3d 472 [2d Dept. 2013]). However, even if the records were admissible, they indicate that it had snowed approximately four inches, four days prior to the accident. The plaintiff testified that the driveway had been shoveled and that she did not see any ice on the driveway when she arrived at the house four hours prior to her accident and traversed the same [*7]area of the driveway when she entered the backdoor prior to having dinner. Thus, there is no proof in the record that the defendants had constructive notice of the condition or had time to remedy the condition as there is testimony as to how long the ice was on the driveway prior to the accident (see Murphy v 136 N. Blvd. Assocs., 304 AD2d 540 [2d Dept. 2003][the plaintiff testified that she slipped on "black ice," which she did not see before her fall]).

Actual notice may be found where the defendant created the condition, or was aware of its existence prior to the accident (see Pianforini v Kelties Bum Steer, 258 AD2d 634 (2d Dept. 1999]). However, there is no proof in the record that he defendants created the icy condition. Defendants established that the driveway had been shoveled with some snow only on the side of the driveway shortly before the plaintiff's accident, and that the snow removal efforts did not create or exacerbate an existing condition. The testimony in the record is that the owner's husband shoveled the driveway prior to the accident and that there were no apparent ice patches on the driveway when plaintiff arrived for dinner at 5:00 p.m. Although, her affidavit submitted in response to the motion, states that there was no salt or sand on the driveway, this testimony is contradictory to her deposition testimony wherein she stated she was not looking down at the driveway when she walked into the house or when she was leaving the house. Neither of the owners testified that there was a lack of sand or salt on the driveway. The plaintiff's contention that she fell on ice that was on the premises for three days prior to the accident is purely speculative (see Aurilia v Empire Realty Assoc., 58 AD3d 773 [2d Dept. 2009]; Zabbia v Westwood, LLC, 18 AD33d 542 [2d Dept. 2005][the plaintiffs tendered no proof, expert or otherwise, as to exactly how or when the icy condition may have formed during the four-hour period between their arrival and the accident. Thus, their claim that the defendants caused or created the ice patch through incomplete snow removal efforts was based on speculation, which was insufficient to defeat a motion for summary judgment]; Spinoccia v Fairfield Bellmore Ave., LLC, 95 AD3d 993 [2d Dept. 2012]; Robinson v. Trade Link Am., 39 AD3d 616 [2d Dept. 2007]).

In opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue as to whether the defendant either created the complained of condition, or had actual or constructive notice thereof. The plaintiff presented no evidence that the defendants had received any complaints about the ice patch, or that it was visible and apparent and had existed for a sufficient length of time before the accident for the defendants [*8]to discover and remedy it. Plaintiff's contention that the defendant left black ice after he shoveled or failed to properly sand is speculative (see Kaplan v DePetro, 51 AD3d 730 [2d Dept. 2008]; Christal v Ramapo Cirque Homeowners Assoc., 51 AD3d 846 [2d Dept. 2008]; Gjoni v 108 Rego Dev. Corp., 48 AD3d 514 [2d Dept. 2008]; Murphy v 136 N. Blvd. Assoc., 304 AD2d 540 [2d Dept. 2003]; Miller v 409-423 WFP Shirley, LLC, 2013 NY Slip Op 32814(U) [Sup. Ct. Nassau Cty, 2013]).

Accordingly, for all of the above stated reasons, the defedants' motion for an order granting summary judgment dismissing the plaintiff's complaint is granted, and the clerk is directed to enter judgment in favor of the defendants.

Dated: June 9, 2014

Long Island City, NY______________________________ROBERT J. MCDONALD

J.S.C.