Bagnoli v 3GR/228 LLC

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[*1] Bagnoli v 3GR/228 LLC 2016 NY Slip Op 51055(U) Decided on July 8, 2016 Supreme Court, New York County Lebovits, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 8, 2016
Supreme Court, New York County

Emilio Bagnoli and MYRA CORDELL BAGNOLI, Plaintiffs,

against

3GR/228 LLC and BETTINA EQUITIES MANAGEMENT LLC, Defendants.



156158/2014



Trolman, Glaser & Lichtman, P.C., New York (Tina M. Wells of counsel), for plaintiffs.

Margaret G. Klein & Associates, New York (Jeffrey D. Fippinger of counsel), for defendants.
Gerald Lebovits, J.

According to plaintiff, Emilio Bagnoli, he slipped and fell on a sidewalk abutting defendants' premises located at 228 East 85th Street in New York County at approximately 10:00 a.m. on January 5, 2014. Plaintiff claims that defendants' negligence caused the accident that resulted in his injuries. Plaintiff's wife, Myra Cordell Bagnoli, has brought a loss-of-consortium claim against defendants. Defendants move for summary judgment under CPLR 3212 because, under the "storm in progress" rule, they contend that they did not have a duty to remove the accumulation of snow and/or ice that had built up on the public sidewalk abutting the premises. In opposition, plaintiffs argue that there was no storm in progress at the time of the accident and that, even if there was a storm in progress, the plaintiff's accident was a result of an earlier storm in which defendants' failed to properly remove the accumulation of snow and/or ice. Defendants further argue that plaintiffs' argument regarding built-up or accumulated snow and/or ice from an earlier storm is merely speculative.

Defendants' motion for summary judgment is denied. For a court to grant summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact about the claim or claims at issue. (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) In a slip-and-fall case, a defendant may establish his entitlement to summary judgment by submitting "certified climatological data, showing that a storm was in progress at the time of plaintiff's fall." (Weinberger v 52 Duane Assos., LLC, 102 AD3d 618, 619 [1st Dept 2013].) Under this "storm in progress" rule, a defendant has no duty to remove any accumulation of snow and/or ice while a storm is ongoing, and the defendant has a reasonable time after the storm has ceased to clean the walkways abutting the premises. (Powell v MLG Hillside Assoc., L.P., 290 AD2d 345, 346 [1st Dept 2002].) This "rule is designed to relieve the worker(s) of any obligation to shovel snow while continuing precipitation or high winds are simply re-covering the walkways as fast as they are cleaned, thus rendering the effort fruitless." (Id.) Plaintiffs may defeat defendants' summary-judgment motion on a showing that the accident was not caused by the accumulation of snow and/or ice from an ongoing storm but, instead, that the accumulation on the ground, which caused plaintiff's accident, was (1) caused by an earlier storm and (2) that the defendants had actual or constructive notice of the existence of the snow and/or ice and did not remedy the condition. (Penn v 57-63 Wadsworth Terrace Holding, LLC, 112 AD3d 426, 426 [1st Dept 2013]; Bojovic v Lydig Bejing Kitchen, Inc., 91 AD3d 517, 517 [1st Dept 2012].)

Defendants proved that a storm was in progress at the time of the accident. Precipitation in the form of freezing rain constitutes a storm in progress. (Sevilla v Calhoun Sch., Inc., 127 AD3d 446, 446 [1st Dept 2015]; Zima v N. Colonie Cent. Sch. Dist., 225 AD2d 993, 994 [3d Dept 1996] [finding that although there was "no major winter storm" when the accident occurred, there was an "ongoing hazardous weather condition" in the form of icy accumulation and icy rain].) Defendants submitted an affidavit from their expert meteorologist and included certified weather records and climatological data showing that a light freezing rain was falling at the time of the accident. (Defendants' Notice of Motion, Exhibit F.) Further, plaintiffs also submitted an affidavit from their expert meteorologist, which confirms that at the time of the accident, "intermittent light freezing rain occurred." (Plaintiffs' Affirmation in Opposition, Exhibit B.) Certified weather records are admissible as proof that a storm was in progress. (See Pipero v New York City Transit Auth., 69 AD3d 493, 493 [1st Dept 2010].) Therefore, defendants have demonstrated that a storm was in progress.

Plaintiffs argue that defendants' expert meteorologist's affidavit is merely speculative and should be disregarded. But the cases plaintiffs cite in support of their assertion are distinguishable from the instant case. In each of the cases plaintiffs cite, the expert meteorologist's affidavit opines only about the general conditions in the vicinity of the accident and do not provide any details about the weather conditions in the specific area of the accident. In contrast, defendants' expert zoomed in on the Doppler images for the specific location of the accident and took into account "nearby surface observations" to conclude that a light freezing rain was falling on the specific location at the time of the accident. (Defendants' Notice of Motion, Exhibit F, at 5.) Therefore, plaintiffs' argument is without merit.

Because defendants were able to prove that a storm was in progress, the burden shifts to [*2]plaintiffs to show that a triable issue of fact exists about whether plaintiff's slip-and-fall was a result of defendants' negligence โ€” that defendant had actual or constructive notice of a hazardous condition and failed to remedy it. (Pippo v City of New York, 43 AD3d 303, 304 [1st Dept 2007].) At the time of the accident, plaintiff observed several patches of ice, each varying in size. (Defendants' Notice of Motion, Exhibit D, Plaintiff's EBT, at 18-20.) According to plaintiff, the ice was "oval" shaped, about an inch thick (although he did not measure it) and was white in color so that one could not see the sidewalk under the ice patches. (Defendants' Notice of Motion, Exhibit D, EBT Transcript, at 24, 32.) The person who was with plaintiff and who witnessed him fall also described the patch of ice as "oval" in shape and having an "off-white to gray" color. (Defendants' Notice of Motion, Exhibit E, EBT Transcript, at 28-29.)

Plaintiff's description of the accumulation of ice and snow on the ground at the time of the accident raises a triable issue about whether the accumulation on which he slipped and fell โ€” which defendants allegedly failed to properly remove โ€” resulted from the ongoing storm or from the prior storm. (See Guzman v Broadway 922 Enterp., LLC, 130 AD3d 431, 431 [1st Dept 2015] ["[P]laintiff's description of the ice as dark' and dirty,' standing alone, is sufficient to raise an issue of fact whether the ice had been there long enough to be discovered and remedied by defendant."]; Ndiaye v NEP W. 119th St. LP, 124 AD3d 427, 428 [1st Dept 2015] [T]he record presents triable issues of fact as to whether the icy condition that caused plaintiff's fall existed prior to the storm, and whether defendants lacked notice of the preexisting condition."].) Plaintiffs' expert meteorologist states in his affidavit that the "precipitation was so light that an umbrella would not have been required to remain dry" and that the "precipitation also did not produce any visible or appreciable ice on the ground." (Plaintiffs' Affirmation in Opposition, Exhibit B). According to plaintiffs' expert, before the date of the accident, a snowstorm started at night on January 2, 2014, and continued for several hours into the night on January 3, 2014, depositing several inches of snow. (Plaintiffs' Affirmation in Opposition, Exhibit B) There was no additional snowfall on January 3 or January 4, but clouds developed in the early morning hours of January 5, 2014. (Plaintiffs' Affirmation in Opposition, Exhibit B) Between January 1, 2014, through at least the early afternoon of January 5, 2014, the temperature remained below freezing. (Plaintiffs' Affirmation in Opposition, Exhibit B.)

A triable issue of fact remains, therefore, about whether the accumulation of snow and/or ice that the plaintiff slipped and fell on was a result of old snow/or ice that had fallen on the subject premises from an earlier snowstorm and whether defendant had actual or constructive notice of the hazardous condition and failed to remedy it.

Although defendants have proven that a storm was in progress at the time of the accident, an issue of fact exists as to whether plaintiff Emilio Bagnoli's accident was a result of defendants' negligence.

Accordingly it is ORDERED that defendants' CPLR 3212 summary-judgment motion is denied; and it is further

ORDERED that defendants serve of copy of this decision and order with notice of entry on all parties and the County Clerk's Office, who shall enter judgment accordingly.



Dated: July 8, 2016

J.S.C.