Maslankowski v City of New York

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Maslankowski v City of New York 2018 NY Slip Op 33471(U) December 18, 2018 Supreme Court, Richmond County Docket Number: 150372/2016 Judge: Thomas P. Aliotta Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] RICHMOND COUNTY CLERK 12/20/2018 01:11 PM NYSCEF DOC. NO. 85 INDEX NO. 150372/2016 RECEIVED NYSCEF: 12/20/2018 YORK SUPREME COURT OF THE STATE, OF NEW COLTNTY OF RICHMOND: PART C-2 SUSAN MASLANKOWSKI, Plaintifi DECISION AND ORDER -againstIndex THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, SAMEH MORCOS andLIZAMORCOS' No.: Motion No.: 15037212016 3570-003 Defendants. marked fully submitted on The following papers numbered..l,,thtough..3,,were the 31't daY of October 2018' PaPers Numbered Upontheforegoingpapers,plaintiffsmotionforleavetoreargueisdenied. this action to plaintiff susAN MASLANKOWSKI (hereinafter "plaintiff') commenced slipped and on January 26'2015'when she allegedly recover damages fbr injuries she sustained in front of 202 Barlow Avenue in Staten fell on snow and ice that accumurated on the sidewalk Moslankowskiv. CitY Index No': 750372/2076 Page 7 of 6 1 of 6 [*FILED: 2] RICHMOND COUNTY CLERK 12/20/2018 01:11 PM NYSCEF DOC. NO. 85 INDEX NO. 150372/2016 RECEIVED NYSCEF: 12/20/2018 MORCOS and home owned by defendants SAMEH Island. 202 Barlow Avenue is a two-family on January 24,20t5 vrrtil .fhe proof indicates that 5.1 inches of snow fell LrzAMoRCos. 5:00 p.M. Further, the temperature fluctuations occurred above and below the freezing mark 24,z0r5,until the time of plaintiff s accident from the commencement of the snow on January onJanuary26,2015.Thereisalsoproofofsomeon-goingprecipitationstartingat5:00A'M'on the moming of Plaintiff s fall' of negligence against THE CITY OF NEW In her complaint, plaintiff asserted allegations yoRK condition to exist on the streets and (hereinafter ,THE CITY'), in all0wing a dangerous of time alleged by plaintiff that a sufficient amount sidewalk after the snow had subsided. It was hadelapsedfollowingthecessationofthesnowevent'therebyallowingfortheimpositionof noticeupontheCityofanydangeroussnowconditionsexistingonthestreetsandsidewalks' p laintiff further as serted alle gations of ne gli gence against defendants/homeowners (hereinafter collectively referred to as 'MORCOS'), SAMEH MORCOS andLTzAMORCOS allegingthattheirtenantnegligentlyremovedthesnowandicefromthesidewalkfollowingthe slipped and a patch of ice upon which plaintiff cessation of snow on January 24,2015,leaving fell. InapriorDecisionandorderdatedJuly20,20l8'thiscourtgrantedthecity'smotion andtheMorcos,crossmotionforsummaryjudgment,therebydismissingplaintiffscomplaint. that submitted sufficient proof demonstrating In the decision, this court found that defendants of salt on January 24,2Qr5, including the use the city commenced snow removai operations first, followed procedures by completing primary roads established with accordance in spreaders, dangerous safe travel conditions and prevent by secondary and tertiary roadways, to effect Moslqnkowskiv' CitY tndex No.: 150372/2016 Page 2 of 6 2 of 6 [*FILED: 3] RICHMOND COUNTY CLERK 12/20/2018 01:11 PM NYSCEF DOC. NO. 85 INDEX NO. 150372/2016 RECEIVED NYSCEF: 12/20/2018 obstructions on the roadways, and that such snow removal operations continued through January 26,2015. It was further noted that while it did not appear that there was any significant storm in progress at the time of plaintiff s accident on January 26,2015, there was some continued precipitation, along with temperature fluctuation occurring on and off from January 24th through January 26,2015, which permitted the thawing and re-icing of wet conditions. These conditions were found to be sufficient to establish an ongoing weather hazatd, and that a sufficient amount of time had not elapsed to charge the City or codefendants with negligence for failing to clear a specific area of snow and ice. The Court further found that proof submitted by Morcos was sufficient to demonstrate that the Morcos' tenant performed snow removal and salting of the sidewalk in front of the subject premises on January 25,2015, and that such snow removal operations did not make the condition of the sidewalk morehazardous. Although plaintiff s expert refuted the tenant's claim that he salted the sidewalk, it was the opinion of this Court that proof of the overall conditions then existin E, i.€.,remnants of the snowfall occurring on January 24,2015, along with the fluctuation of temperatures, and additional precipitation, all within a two-day time period, established conditions sufficient to establish an on-going weather hazatd. plaintiff now moves to reargue this decision and contends that the Court misapplied the law with regard to the "storm in progress" rule, and that triable issues of fact exist regarding defendants, snow removal efforts, and whether such efforts created ahazardous condition or exacerbated a natural condition created by the subject storm' According to plaintiff, after the initial snow event on January 24,2015, the Morcos' such tenant attempted to clean the sidewalk in front of the Morcos' residence, and botched Maslankowskiv. CitY tndex No.: 150372/2016 Page 3 of 6 3 of 6 [*FILED: 4] RICHMOND COUNTY CLERK 12/20/2018 01:11 PM NYSCEF DOC. NO. 85 INDEX NO. 150372/2016 RECEIVED NYSCEF: 12/20/2018 cleaning, which resulted in the formation of a layer of ice on which plaintiff slipped and fell. Plaintiff alleges that proof indicates that the day before the accident, temperatures fluctuated up to 42 degrees and then dropped below freezing in the hours before the accident. Accordingly, plaintiff argues the ice condition formed before the precipitation which occurred on the day of the accident, and therefore refutes any "storm in progress" defense. Moreover, 38 hours had expired between the cessation of the first storm on January 24,2015 and plaintiff s accident. Therefore, there were two distinct weather patterns, the second of which was inconsequential. Thus, the substandard snow removal efforts by the Morcos' tenant following the first storm created ahazardous condition on the sidewalk that caused plaintiff s injury. Plaintiff further arsues that the Morcos' tenant admits that he shoveled snow onto either side of the sidewalk, and that photographs taken shortly after the subject accident corroborate this fact. Plaintiff argues that this proof, in addition to the alleged failure to properly salt the sidewalk, all contributed to the re-freezing of snow that had melted onto the sidewalk after the temperature fluctuation causing ahazardous condition to exist on the sidewalk. In opposition, the Morcos defendants argue that plaintiff has again failed to raise triable issues of fact. According to said defendants, it is uncontroverted that at the time of plaintiff s fall, there was an ongoing snow event, which had commenced at approximately 5:00 A.M. and was sufficient to cover the sidewalk. Accordingly, the burden then shifted to plaintiff to somehow raise an issue regarding their liability during an ongoing storm. The Morcos further posit that plaintiff incorrectly reargues that an icy condition on the sidewalk resulted from water runoff due to melting and re-freezing because salt was not properly applied. It is their argument that plaintiff s expert, however, fails to address the steady temperature drop following the Moslonkowskiv. City lndex No.: 150372/2016 Poge 4 of 6 4 of 6 [*FILED: 5] RICHMOND COUNTY CLERK 12/20/2018 01:11 PM NYSCEF DOC. NO. 85 INDEX NO. 150372/2016 RECEIVED NYSCEF: 12/20/2018 was the result of tenant,s snow removal operations, and merely concludes that the ice condition that the failure to inadequate snow removal efforts by the tenant. Finally, the Morcos argue v. Deanco Servs'. Inc', apply salt does not bear upon a defendants' potential liability (see Santos position that plaintiff 142 AD3d 137 l2dDept. 20161). In view of the foregoing, it is their s motion must be denied. CPLR 2221(d)(2) requires that a motion for leave to reargue shall be based upon matters the prior of fact or law allegedly overlooked or misapprehended by the court in determining relevant fact, motion. Here, plaintiff has failed to demonstratethatthe court overlooked any its earlier determination misapprehended the law or, for some other reason, mistakenly arrived at (see Schneider v. Solowey, 141 AD2d 813 [2d Dept' 1988])' with regard to In its prior decision, this Court duly considered all of the proof submitted up to the time plaintiff fell' the precipitation and temperature fluctuations from January 24,2015 and contrary to plaintiff s contentions, it did not mistakenly arrive at its earlier determination' In affidavit submitted in addition, the Court reviewed the deposition testimony and the expert now, has failed to raise a opposition to the motions, and determined that plaintiff, both then and triable issue of fact. It was noted by the Court progress at the time of plaintiff s that while there was no significant storm in fall, the proof submitted confirms the existence of ongoing hazardous weather conditions preceding the time of plaintiff s fall, including the thawing and re- expert' Accordingly' a freezing of wet conditions, which was all by confirmed by plaintiff s negligence for failing to sufficient amount of time must elapse before charging defendant's with is not present here' clear a specific area of the existing hazardous condition, which Maslonkowskiv. CitY tndex No.: L50372/201'6 Page 5 of 6 5 of 6 [*FILED: 6] RICHMOND COUNTY CLERK 12/20/2018 01:11 PM NYSCEF DOC. NO. 85 INDEX NO. 150372/2016 RECEIVED NYSCEF: 12/20/2018 Moreover, photographs and testimony regarding the existence of snow on either side of the sidewalk, and the presence of snow and ice on the sidewalk prior to plaintiff s fall, merely confirm the already hazardous conditions. It is well established that a failure to remove all the snow is not negligence and liability will not result unless it is shown that the defendant made the sidewalk morehazardous through his or her removal efforts (see Prado v. City of New York, 276 AD2d765 l2d Dept 20001. Since the proof fails to establish that the Morcos' tenant made the condition morchazardous, defendants cannot be held liable under the circumstances presented here. Accordingly, it is ORDERED that plaintiffls motion for leave to reargue is denied. ENTER, HON. THOMAS P. ALIOTTA. J.S.C. Dated: December/6, 2018 Maslankowskiv. City lndex No.: 750372/20L6 Poge 6 of 6 6 of 6

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