Muzio v Levittown Union Free Sch. Dist.

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Muzio v Levittown Union Free Sch. Dist. 2018 NY Slip Op 34419(U) January 17, 2018 Supreme Court, Nassau County Docket Number: Index No. 602177/2015 Judge: Leonard D. Steinman 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: NASSAU COUNTY CLERK 01/19/2018 12:34 PM NYSCEF DOC. NO. 48 INDEX NO. 602177/2015 RECEIVED NYSCEF: 01/19/2018 SUPREME NEW YORK SUPREME COURT COURT OF OF THE THE STATE STATE OF OF NEW YORK COUNTY NASSAU COUNTY OF OF NASSAU -----------------------------------------------------------------------X -----------------------------------------------------------------~-----)( IAS lAS Part Part 17 Index Index No. No. 602177/2015 602177/2015 No. 001 . Mot. Mot. Seq. Seq. No. JAMES MUZIO, JAMES MUZIO, Plaintiff, Plaintiff, -against-againstDECISION AND AND ORDER DECISION ORDER LEVITTOWN UNION DISTRICT, LEVITTOWN UNION FREE FREE SCHOOL SCHOOL DISTRICT, NORTHSIDE ELEMENTARY NORTHSIDE ELEMENTARY SCHOOL, SCHOOL, Defendants. Defendants. -----------------------------------------------------------------------X -----------------------------------------------------------------------)( LEONARD D. STEINMAN, LEONARD STEINMAN, J. The following papers, papers, addition memoranda of parties, addition to any memoranda of law submitted submitted by the parties; Decision and Order: were reviewed in preparing preparing this Decision ,, JI Notice of Notice of Motion Motion of of Defendant Defendant Levittown Levittown Union Free Sch. Dist., Affirmation Affirmation & Exhibits ................................................................................... Exhibits 1I Plaintiff's Affirmation Affirmation in Opposition Opposition & Exhibits Exhibits ............................................ 2 Plaintiff's Defendant's Reply Affirmation 3'\ Defendant's Affirmation ................................................................ 3"' alleged slip and fall fall on"the on/he This is an action for personal personal injuries following plaintiff's plaintiffs alleged of January 9, 9,2014, of a horseshoe horseshoe driveway driveway in front of of the 2014, on an icy portion portion of evening ofJanuary Northside Elementary School. The school is one of of multiple the' multiple school buildings buildings within the· Northside Elementary District ("the District"). District")~ Plaintiff Plaintiff asserts that after he watched watched his son's son's Levittown School District basketball game that was held in the building of ice while building he slipped and fell on a patch patch of now moves moves for summary walking to his car that was parked parked in the driveway. The District District now judgment dismissing the complaint. complaint. Plaintiff Plaintiff opposes the application. application. judgment dismissing Onaa motion for summary summary judgment tender sufficient sufficient evidence to judgment the proponent proponent must tender On demonstrate the absence absence of of any material issues of of fact in order to set forth a prima prima facie facie entitled to judgment of law. Giuffrida Giuffrida v. v. Citibank Citibank Corp., Corp., 110,0 showing that it is entitled judgment as a matter of qo ,IIi N.Y.2d 72, 81 (2003). Where the movant burden the motion N.Y.2d 72,81 movant fails to meet its initial burden motion for should be denied. US. us. Bank v. Weinman, Weinman, 123 A.D.3d A.D.3d 1108 (2d Bank NA. NA. v. summary judgment judgment should 2014). ). Dept. 2014 11 [* 1] 1 of 4 INDEX NO. 602177/2015 FILED: NASSAU COUNTY CLERK 01/19/2018 12:34 PM NYSCEF DOC. NO. 48 I RECEIVED NYSCEF: 01/19/2018 t"- Once a movant movant has shown shown a primafacie summary judgment, primafacie right to summary judgment, the burden burden shifts to the opposing party to show that a factual dispute exists requiring requiring a trial, and such facts presented by the opposing presented opposing party must be presented presented by evidentiary evidentiary proof proof in admissible admissible form. Zuckerman v. v. City of of New York, 49 N.Y.2d N.Y.2d 557 (1980); Friends of Animals, Friends of Animals, Inc. v. v. Associated Fur Mfgrs., Inc., 46 N.Y.2d N.Y.2d 1065 (1979); Werner Associated v. Nelkin, Nelkin, 206 A.D.2d A.D.2d 422 (2d viewed in the light most favorable Dept. 1994). The facts must be viewed favorable to the opposing opposing party, and every available inference inference must opposition's favor favor... Torres v. must be drawn in the opposition's v. Jones, 26 N.Y.3d N.Y.3d 742, 763 (2016). ' "A defendant judgment in a slip-and-fall defendant who moves for summary summary judgment slip-and- fall case has the initial· initial burden of making a prima prima facie facie showing showing that it neither created hazardous condition created the hazardous condition nor had actual or consti:uctive ofits const~uctive notice of its existence existence for a sufficient sufficient length length of of time to discover and remedy it." Yioves v TJ. TJ. Maxx, Inc., 29 A.D.3d 572,572 A.D.3d 572, 572 (2d Dept. 2006); see also Britto v Great Atl. & Pac. Tea Co., Co., Inc., Inc., 21 A.D.3d A.D.3d 436 (2d Dept. 2005). Only after the movant has satisfied satisfied this threshold threshold burden examine the sufficiency sufficiency of of the burden will the court examine plaintiff's opposition. Joachim v 1824 Church Ave., Inc., 12 A.D.3d plaintiffs opposition. See Joachim A.D.3d 409 (2d Dept. 2004). "A property property owner owner will be held liable for a slip-and-fall slip-and-fall accident accident involving involving snow and ice on its property property only when when it created the dangerous condition condition which caused the accident or which caused had actual or constructive thereof." Robinson constructive notice thereof." v. Trade LinkAm., 616,616Robinson v. Link Am., 39 A.D.3d A.D.3d 616, 61617 (2d Dept. 2007) (internal (internal citations omitted). "To provide constructive notice, a defect provide constructive must be visible and apparent apparent and it must exist for a sufficient length of of time prior sufficient length prior to the accident to permit permit the defendants defendants to discover discover and remedy it." Medina v. La Fiura Dev. Medina v. Corp., 69 A.D.3d 686-87 (2d Oept. A.D.3d 686, 686,686-87 Dept. 2010)(intemal 2010)(internal citations citations omitted). omitted). "Significantly, "Significantly, defendant's defendant's general awareness awareness that icy conditions conditions might have existed existed is insufficient insufficient to establish constructive notice of constructive notice of the specific condition condition that resulted injuries." resulted in plaintiffs plaintiff's injuries." Pierson v. v. North Colonie Cent. School School Dist., 74 A.D.3d A.D.3d 1652 (3d Dept. 2010). There is no dispute that the District District is responsible responsible for the snow removal removal in the ar~a area where plaintiff plaintiff alleges that he fell. Defendant Defendant argues that plaintiff cannot establish plaintiff cannot establish that it created the condition condition or had actual or constructive constructive notice of of the condition. condition. Plaintiff Plaintiff contends 2 [* 2] 2 of 4 FILED: NASSAU COUNTY CLERK 01/19/2018 12:34 PM NYSCEF DOC. NO. 48 INDEX NO. 602177/2015 RECEIVED NYSCEF: 01/19/2018 that the District's District's snow removal removal efforts were inadequate and that the area had not been properly inspected inspected given the weather weather conditions. Plaintiff patches on the driveway driveway before Plaintiff testified testified that he did not see any snow or ice patches the accident, either on his way into the building or as he exited. He testified testified that after falling he looked to see what he fell on and only then did he see the patch of of ice on the ground. Joseph Muzio, plaintiffs plaintiff's brother, also testified testified that when he entered entered the school building building and of ice in the location where plaintiff he did not notice any patches patches of when he exited with the plaintiff of the accident there was no precipitation. precipitation. plaintiff fell. At the time of plaintiff of the condition There is no evidence District had actual notice notice of evidence in the record that the District v. Staples Staples the the Off Superstore E., Inc., 13 plaintiff to slip. See See Hall Hall v." that allegedly caused caused plaintiff Off. Superstore A.D.3d 706 (2d Dept. 2016). Plaintiffs Plaintiff's own testimony testimony reflects that he did not observe observe the ice at the location location until after he slipped, and there is no evidence evidence of of any prior prior complaint complaint that would have put the District District on notice of of the icy condition. "To constitute apparent and it must constitute constructive constructive notice, a defect must be visible and apparent sufficient length of time prior to the accident to permit permit the District's District's employees employees to exist for a sufficient length of remedy it." See discover and remedy See D'Esposito D'Esposito v. v. Mateo Mateo Hill Hill Auto Auto Serv., Serv., Inc., Inc., 150 A.D.3d A.D.3d 817,818 817, 818 v. Am. Am. Museum Museum o/Natural ofNatural History, History, 67 N.Y.2d N.Y.2d 836, 837-38 (1986). (2d Dept. 2017); Gordon Gordon v. 836,837-38 record that the District District had constructive constructive notice of of the conditioll. condition. There is no evidence in the record Christopher Milano testified Christopher testified at his deposition deposition thatthere that there are "no trouble trouble spots" on the bus loop where water might collect. Each of of the witnesses witnesses that were in the vicinity vicinity just just prior to Significantly, the incident testified testified that they did not see any ice in the area prior prior to the fall. Significantly, plaintiff himself as well as his brother plaintiff himself brother testified testified that they had safely passed passed through through the area prior to the accident and did not notice the ice. See Consumers Warehouse Warehouse See Kulchinsky Kulchinsky v. v. Consumers Center, Inc., 134. A.D.3d v. DePetro, DePetro, 51 51 A.D.3d A.D.3d 730 (2d Center, A.D.3d 1068 (2d Dept. 2015); Kaplan Kaplan v. Therefore, the ice that allegedly caused plaintiff plaintiff to slip was not visible and/or Dept. 2008). Therefore, v. New York City City Housing 75 A.D.3d A.D.3d 629 (2d Dept. 2010). New York Housing Authority, Authority, 15 apparent. Perez Perez v. , that plaintiff plaintiff contends contends that the District District had an ongoing ongoing duty to contintie continue To the extent that snowstorm, "it is well settled settled that that general general awareness awareness that an to inspect the area days after a snowstorm, condition might might exist exist is not sufficient, sufficient, without without more, to constitute constitute notice notice of of a particular particular icy condition Stoddard v. v. G.E. Plastics Corp., 11 11 A.D.3d A.D.3d 862 (3d Dept. 2004), 2004), see see also also condition." Stoddard Plastics Corp., 3 [* 3] 3 of 4 INDEX NO. 602177/2015 FILED: NASSAU COUNTY CLERK 01/19/2018 12:34 PM NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 01/19/2018 v. Jefferson A.D.2d 444 (2d Dept. 2002) Carricato v. Jefferson Valley Mall Ltd. Partnership, 299 A.D.2d water can tum tum to ice is legally insufficient insufficient to constitute constitute constructive constructive ("general awareness that water notice of the particular condition that caused the plaintiff particular condition plaintiff to fall.") opposition, plaintiff of fact. Plaintiff's Plaintiff's expert, In opposition, plaintiff has failed to raise a triable issue of meteorologist, contends that the icy condition condition was the result of Mark Kramer, a forensic meteorologist, precipitation occurred days before. But the District Districtpresented evidence that it had precipitation that had occurred presented evidence ..., Kramer further taken steps remove any slush or snow following the precipitation. precipitation. Mr. Kramer slipped on ice that had been there for at least two days prior speculates that plaintiff plaintiff slipped prior to the apparent to constitute constitute incident. But even if this were true the ice had to be visible and apparent constructive notice on the part of of the District. Gordon v. v. American o/Natural. American Museum Museum of Natural. constructive History, 67 N.Y.2d v. Consumers Consumers Warehouse. Center, Inc., N.Y.2d 836, 837 (1986); Kulchinsky Kulchinsky v. 134. A.D.3d at 1069. As found above, the evidence submitted submitted reflects reflects that the ice was not 134. visible. Accordingly, the motion motion for summary summary judgment granted and the complaint complaint is Accordingly, judgment is granted dismissed. relief requested requested not specifically specifically addressed herein herein is denied. Any relief constitutes the Decision Decision and Order of of this court. This constitutes 17,2018 Dated: January 17, 2018 Mineola, New New York ENTERED JAN 1 9 2018 2018 JAN NASSAU COUNTY NASSAU COUNTY CLERK'S CLERK'S OFFICE COUNTY 4 [* 4] 4 of 4

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