Rodriguez v New York City Tr. Auth.
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[*1]
Rodriguez v New York City Tr. Auth.
2015 NY Slip Op 51771(U)
Decided on December 4, 2015
Supreme Court, New York County
Stallman, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 4, 2015
Supreme Court, New York County
Rosemary Carol Rodriguez, Plaintiff,
against
New York City Transit Authority and METROPOLITAN TRANSIT AUTHORITY, Defendants.
153224/14
Appearances:
For Defendants New York City Transit Authority and Metropolitan Transportation Authority (s/h/a "Metropolitan Transit Authority")
Michael P. O'Brien, Esq.
Obrien Law Firm, PLLC, of counsel to: Lawrence Heisler, Esq.
30 Wall Street, 8th Floor
New York, NY 10005
For Plaintiff Rosemary Carol Rodriguez:
Edward R. Averbuch, Esq.
Greenberg Law P.C.
370 Lexington Avenue, Suite 801
New York, NY 10165
Michael D. Stallman, J.
Storm in Progress Doctrine
As a general matter, common carrier defendants in negligence cases are "subject to the same duty of care as any other potential tortfeasor—reasonable care under all of the circumstances of the particular case." (Bethel v New York City Tr. Auth., 92 NY2d 348, 356 [1998].) Thus, like any private property owner, the instant transit defendants "cannot be held liable for a fall caused by a winter storm while the storm is in progress, or for a reasonable time thereafter." (Solazzo v New York City Tr. Auth., 21 AD3d 735, 735 [1st Dept 2005], affd 6 NY3d 734 [2005].)
To establish that a storm was in progress, defendants submit employee testimony and contemporaneous business records contending that snow was falling at the time of plaintiff's injury. (Def. Opening Affirm. Ex. D [Ahmed EBT], at 31:6-25; Ex. E [CTA Cleaning Report].)
In opposition, plaintiff submits certified National Oceanic and Atmospheric Administration climatological records evidencing that snowfall had ceased more than two hours prior to plaintiff's injury, and that 1.5 inches of snow fell that day. (Pl. Affirm. Ex. A [Hourly Observations Table], [Daily Totals Table].) In addition, plaintiff notes that the incident occurred indoors and argues that defendants have not established a link between the dangerous condition and the alleged storm in progress. (Id. at ¶¶15-18.)
In reply, defendant notes that the meteorological data that plaintiff submits were recorded roughly 20 blocks from the scene of plaintiff's injury and therefore snow "could" have been falling on the street above where plaintiff fell at 7:00 PM. (Def. Reply Affirm. at ¶ 4.) Furthermore, defendant disputes that the incident occurred indoors, arguing that "[c]ontrary to Plaintiff's opposition papers" the incident occurred "on a stairway that is exposed to the outside elements (snow, wind, etc.)." (Id. at ¶ 7.) Thus, a disputed issue of fact arises as to whether a storm was in progress at the time of the incident or whether a reasonable period had elapsed following its cessation.
This Court does not, on this motion, make any findings about the applicability of the storm in progress doctrine. Rather, whether the storm in progress doctrine is applicable is an issue for trial.
Moreover, there is a triable issue of fact as to whether the water on the platform where plaintiff slipped and fell could have been tracked from the 1.5 inches of snow that fell outside the station. Although defendants point to cases barring liability for indoor falls based on the storm in progress doctrine, those cases all involved a fall occurring near the entrance of the indoor structure. (See, e.g., Solazzo, 6 NY3d at 735 [noting that the subject steps down into the subway were exposed to sleeting weather conditions]; Assaf v City of New York, 28 Misc 3d [*3]1233[A] [Sup Ct NY County 2010] [noting that plaintiff slipped upon entering the lobby on water and melted snow tracked inside].)
Unlike the cases cited by defendants, there is no evidence on this motion that the platform on which plaintiff fell was in a generally wet state as a result of other persons tracking moisture inside the premises. (See, e.g., Assaf, 28 Misc 3d 1233[A] [noting that people were "entering the lobby with snow on their shoes" causing "an accumulation of water and melted snow on the lobby floor"].) To the contrary, defendant NYCTA's own business records and the testimony of its employee Waqas Amhed, on duty as a station cleaner during the day of the incident, state that the area around the incident was dry. (Ahmed EBT, at 33:06-11 [stating that despite customers tracking in snow as they entered the station, stairway P4B was dry]; Ex. E [Customer Incident Report stating that place of incident was "[d]ry"].)
Viewing the circumstances in a light most favorable to the non-movant, plaintiff appears to have fallen on an indoor, lower level subway platform well below the street level. (Rodriguez EBT, at 8:10-10:03, 12:14-13:17.) Although defendants dispute plaintiff's claim that she fell indoors, defendants did not submit any schematics, station plans, or photographs to substantiate their counsel's assertion that the incident occurred "on a stairway that is exposed to the outside elements (snow, wind, etc.)." (Def. Reply Affirm. ¶ 7). Indeed, the stairway P4B bears a "P" designation, presumptively indicating that it accesses a platform.
Moreover, given the paucity of evidence of the station structure and of the train routes, it cannot be determined here whether the area where plaintiff allegedly fell was located below a grate or other structures that could have allowed moisture to enter from the street, or that moisture could have been tracked by passengers from such an area in one of the 59th Street stations, or from trains that had traversed outdoor rights of way with above-ground platforms exposed to the elements.[FN1]
Lack of Constructive or Actual Notice
In support of their second argument, defendants point to the Customer Incident Report included Exhibit E of the Affirmation of Michael P. O'Brien, among several other contemporaneous reports, which states that the "place of incident" was "inspected before incident occurred" at 7:00 PM on December 17, 2013 by Mr. Ahmed, and thus defendants lacked actual and constructive notice. (Def. Opening Affirm. ¶ 8; Ex. E [Customer Incident Report].) Plaintiff responds that the CTA Cleaning Report—which is also included in Exhibit E—states that incident occurred at 6:59 PM and Mr. Ahmed's inspection occurred at 7:00 PM. (Pl. Affirm. ¶ 22; Def. Opening Affirm. Ex. E [CTA Cleaning Report].)
To prevail on a motion for summary judgment for lack of constructive notice, defendants "must proffer evidence from a person with personal knowledge as to when the sidewalk was last inspected or as to its condition before the accident." (Rodriguez v Bronx Zoo Rest., Inc., 110 AD3d 412, 412 [1st Dept 2013].)
Here, defendants did not meet their prima facie burden of summary judgment as to lack of constructive notice. Although Mr. Ahmed testified that he generally had a practice of inspecting each of the nine stairways assigned to him three times every hour when it snowed [*4](Ahmed EBT, at 35:25-44:21), he never testified as to when he actually last inspected the area where plaintiff fell. "Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice." (Herman v Lifeplex, LLC, 106 AD3d 1050, 1051 [2d Dept 2013]; see also Mike v 91 Payson Owners Corp., 114 AD3d 420, 420 [1st Dept 2014] [holding that defendants' "showing of their general cleaning procedures is insufficient to satisfy their burden of establishing that they lacked notice of the alleged condition prior to the accident"].)
According to the Customer Incident Report, Mr. Ahmed claims to have inspected the stairs right before or at the time of the incident, because the Customer Incident Report states that the "place of incident" was "inspected before incident occurred" at 7:00 PM on that date by Mr. Ahmed. (See Def. Opening Affirm. ¶ 8; Ex. E [Customer Incident Report].) However, this same report states that the incident occurred at 7:00 PM, and Mr. Ahmed testified that he did not witness plaintiff fall, (Ahmed EBT, at 27:23-28:02), and that he went to the scene after being informed of the incident by other passengers, (id. at 28:12-20). In addition, a contemporaneous CTA Cleaning Report—which is also included in Exhibit E—states that the incident occurred at 6:59 PM and Mr. Ahmed's inspection occurred at 7:00 PM. (Id. Ex. E [CTA Cleaning Report].) Viewing the record in a light most favorable to the non-movant plaintiff, there is an issue of fact as to if or when Mr. Ahmed inspected the area before plaintiff fell.
Dated:_____12/4/2015_________
New York, New York
ENTER:
/s/
J.S.C. Footnotes
Footnote 1:Even if the storm in progress doctrine is ultimately found not to apply, there would be a trial issue as to whether defendants acted reasonably, under all of the circumstances.
Decided on December 4, 2015
Supreme Court, New York County
Rosemary Carol Rodriguez, Plaintiff,
against
New York City Transit Authority and METROPOLITAN TRANSIT AUTHORITY, Defendants.
153224/14
Appearances:
For Defendants New York City Transit Authority and Metropolitan Transportation Authority (s/h/a "Metropolitan Transit Authority")
Michael P. O'Brien, Esq.
Obrien Law Firm, PLLC, of counsel to: Lawrence Heisler, Esq.
30 Wall Street, 8th Floor
New York, NY 10005
For Plaintiff Rosemary Carol Rodriguez:
Edward R. Averbuch, Esq.
Greenberg Law P.C.
370 Lexington Avenue, Suite 801
New York, NY 10165
Michael D. Stallman, J.
In this personal injury action in which plaintiff alleges a slip and fall on a subway platform, defendants New York City Transit Authority (NYCTA) and Metropolitan Transportation Authority (sued herein as "Metropolitan Transit Authority") move for summary judgment dismissing the complaint.
BACKGROUND
Plaintiff alleges that, on December 17, 2013 at approximately 7:00 PM, she had just descended the staircase from the IRT Division downtown 1 train platform at the 59th Street Columbus Circle station, when she slipped and fell on water roughly five-and-a-half feet from stairway P4B on the IND Division downtown ABCD train platform. (Def. Opening Affirm. at ¶ 5; Ex. A at ¶ 23; Ex. F [Rodriguez EBT], at 8:10-10:03, 12:14-13:17.) Defendants move for summary judgment on two grounds: first, that recovery is barred by the storm in progress [*2]doctrine; and, second, that defendants neither created the defective condition causing plaintiff's injury nor had actual or constructive notice of the defect.
DISCUSSION
"Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action." (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012] [internal citations, emendation, and quotation marks omitted].) Furthermore, on a motion for summary judgment, "facts must be viewed in the light most favorable to the non-moving party." (Id. [internal quotation marks omitted].)
Storm in Progress Doctrine
As a general matter, common carrier defendants in negligence cases are "subject to the same duty of care as any other potential tortfeasor—reasonable care under all of the circumstances of the particular case." (Bethel v New York City Tr. Auth., 92 NY2d 348, 356 [1998].) Thus, like any private property owner, the instant transit defendants "cannot be held liable for a fall caused by a winter storm while the storm is in progress, or for a reasonable time thereafter." (Solazzo v New York City Tr. Auth., 21 AD3d 735, 735 [1st Dept 2005], affd 6 NY3d 734 [2005].)
To establish that a storm was in progress, defendants submit employee testimony and contemporaneous business records contending that snow was falling at the time of plaintiff's injury. (Def. Opening Affirm. Ex. D [Ahmed EBT], at 31:6-25; Ex. E [CTA Cleaning Report].)
In opposition, plaintiff submits certified National Oceanic and Atmospheric Administration climatological records evidencing that snowfall had ceased more than two hours prior to plaintiff's injury, and that 1.5 inches of snow fell that day. (Pl. Affirm. Ex. A [Hourly Observations Table], [Daily Totals Table].) In addition, plaintiff notes that the incident occurred indoors and argues that defendants have not established a link between the dangerous condition and the alleged storm in progress. (Id. at ¶¶15-18.)
In reply, defendant notes that the meteorological data that plaintiff submits were recorded roughly 20 blocks from the scene of plaintiff's injury and therefore snow "could" have been falling on the street above where plaintiff fell at 7:00 PM. (Def. Reply Affirm. at ¶ 4.) Furthermore, defendant disputes that the incident occurred indoors, arguing that "[c]ontrary to Plaintiff's opposition papers" the incident occurred "on a stairway that is exposed to the outside elements (snow, wind, etc.)." (Id. at ¶ 7.) Thus, a disputed issue of fact arises as to whether a storm was in progress at the time of the incident or whether a reasonable period had elapsed following its cessation.
This Court does not, on this motion, make any findings about the applicability of the storm in progress doctrine. Rather, whether the storm in progress doctrine is applicable is an issue for trial.
Moreover, there is a triable issue of fact as to whether the water on the platform where plaintiff slipped and fell could have been tracked from the 1.5 inches of snow that fell outside the station. Although defendants point to cases barring liability for indoor falls based on the storm in progress doctrine, those cases all involved a fall occurring near the entrance of the indoor structure. (See, e.g., Solazzo, 6 NY3d at 735 [noting that the subject steps down into the subway were exposed to sleeting weather conditions]; Assaf v City of New York, 28 Misc 3d [*3]1233[A] [Sup Ct NY County 2010] [noting that plaintiff slipped upon entering the lobby on water and melted snow tracked inside].)
Unlike the cases cited by defendants, there is no evidence on this motion that the platform on which plaintiff fell was in a generally wet state as a result of other persons tracking moisture inside the premises. (See, e.g., Assaf, 28 Misc 3d 1233[A] [noting that people were "entering the lobby with snow on their shoes" causing "an accumulation of water and melted snow on the lobby floor"].) To the contrary, defendant NYCTA's own business records and the testimony of its employee Waqas Amhed, on duty as a station cleaner during the day of the incident, state that the area around the incident was dry. (Ahmed EBT, at 33:06-11 [stating that despite customers tracking in snow as they entered the station, stairway P4B was dry]; Ex. E [Customer Incident Report stating that place of incident was "[d]ry"].)
Viewing the circumstances in a light most favorable to the non-movant, plaintiff appears to have fallen on an indoor, lower level subway platform well below the street level. (Rodriguez EBT, at 8:10-10:03, 12:14-13:17.) Although defendants dispute plaintiff's claim that she fell indoors, defendants did not submit any schematics, station plans, or photographs to substantiate their counsel's assertion that the incident occurred "on a stairway that is exposed to the outside elements (snow, wind, etc.)." (Def. Reply Affirm. ¶ 7). Indeed, the stairway P4B bears a "P" designation, presumptively indicating that it accesses a platform.
Moreover, given the paucity of evidence of the station structure and of the train routes, it cannot be determined here whether the area where plaintiff allegedly fell was located below a grate or other structures that could have allowed moisture to enter from the street, or that moisture could have been tracked by passengers from such an area in one of the 59th Street stations, or from trains that had traversed outdoor rights of way with above-ground platforms exposed to the elements.[FN1]
Lack of Constructive or Actual Notice
In support of their second argument, defendants point to the Customer Incident Report included Exhibit E of the Affirmation of Michael P. O'Brien, among several other contemporaneous reports, which states that the "place of incident" was "inspected before incident occurred" at 7:00 PM on December 17, 2013 by Mr. Ahmed, and thus defendants lacked actual and constructive notice. (Def. Opening Affirm. ¶ 8; Ex. E [Customer Incident Report].) Plaintiff responds that the CTA Cleaning Report—which is also included in Exhibit E—states that incident occurred at 6:59 PM and Mr. Ahmed's inspection occurred at 7:00 PM. (Pl. Affirm. ¶ 22; Def. Opening Affirm. Ex. E [CTA Cleaning Report].)
To prevail on a motion for summary judgment for lack of constructive notice, defendants "must proffer evidence from a person with personal knowledge as to when the sidewalk was last inspected or as to its condition before the accident." (Rodriguez v Bronx Zoo Rest., Inc., 110 AD3d 412, 412 [1st Dept 2013].)
Here, defendants did not meet their prima facie burden of summary judgment as to lack of constructive notice. Although Mr. Ahmed testified that he generally had a practice of inspecting each of the nine stairways assigned to him three times every hour when it snowed [*4](Ahmed EBT, at 35:25-44:21), he never testified as to when he actually last inspected the area where plaintiff fell. "Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice." (Herman v Lifeplex, LLC, 106 AD3d 1050, 1051 [2d Dept 2013]; see also Mike v 91 Payson Owners Corp., 114 AD3d 420, 420 [1st Dept 2014] [holding that defendants' "showing of their general cleaning procedures is insufficient to satisfy their burden of establishing that they lacked notice of the alleged condition prior to the accident"].)
According to the Customer Incident Report, Mr. Ahmed claims to have inspected the stairs right before or at the time of the incident, because the Customer Incident Report states that the "place of incident" was "inspected before incident occurred" at 7:00 PM on that date by Mr. Ahmed. (See Def. Opening Affirm. ¶ 8; Ex. E [Customer Incident Report].) However, this same report states that the incident occurred at 7:00 PM, and Mr. Ahmed testified that he did not witness plaintiff fall, (Ahmed EBT, at 27:23-28:02), and that he went to the scene after being informed of the incident by other passengers, (id. at 28:12-20). In addition, a contemporaneous CTA Cleaning Report—which is also included in Exhibit E—states that the incident occurred at 6:59 PM and Mr. Ahmed's inspection occurred at 7:00 PM. (Id. Ex. E [CTA Cleaning Report].) Viewing the record in a light most favorable to the non-movant plaintiff, there is an issue of fact as to if or when Mr. Ahmed inspected the area before plaintiff fell.
CONCLUSION
Accordingly, it is hereby
ORDERED that defendants' motion for summary judgment, dismissing the complaint, is DENIED.
Dated:_____12/4/2015_________
New York, New York
ENTER:
/s/
J.S.C. Footnotes
Footnote 1:Even if the storm in progress doctrine is ultimately found not to apply, there would be a trial issue as to whether defendants acted reasonably, under all of the circumstances.
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