Mandrell v Roman

[*1] Mandrell v Roman 2018 NY Slip Op 50265(U) Decided on February 26, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 26, 2018
Supreme Court, Queens County

Frank Mandrell, Plaintiff,

against

David Roman and JACQUELINE ROMAN, Defendants.



708480/2015
Robert J. McDonald, J.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff on March 7, 2015 when he slipped and fell on ice on the exterior stairs of defendants' premises located at 84-27 85th Drive, Woodhaven, New York 11421.

Plaintiff commenced this action by filing a summons and complaint on August 11, 2015. Issue was joined by service of defendants' answer dated September 23, 2015. Defendants now move for summary judgment on the grounds that they did not create the icy condition and did not have actual or constructive knowledge [*2]of it.

Plaintiff appeared for an examination before trial on December 8, 2016. He testified that he resided at the subject property for approximately three to four years. The incident occurred on Saturday, March 7, 2015, before 9:00 a.m. At the time of the incident, he was residing in a second floor apartment. There are a series of two staircases leading from the front entrance/exit of the home and the sidewalk. There is an intermediary landing between the two sets of stairs. Directly outside the front door is a porch which is covered by a roof. The steps are open. The first set of stairs begins after the porch. The incident occurred on the first set of stairs after the porch. He was stepping onto the first step off the porch when he slipped on ice. One of his feet slipped out from underneath him and he fell. He came to rest on the intermediary landing. He was looking straight ahead as he stepped off the porch onto the first step. He did not observe any ice on the top step until after his incident, when he was located on the landing. Then he observed ice on the handrail and the step. He did not see any salt or sand on the top step. The step was concrete. The steps have a handrail on both sides. At the time of the incident, the weather was cold. He did not remember the last time any precipitation had fallen prior to the incident. He used the subject staircase the night before the incident at approximately 8:00 p.m. At that time, he did not see any snow on the top step, he did not notice any ice on the premises, and he did not notice any salt or sand on the staircase. Prior to the incident, he did not make any complaints to Mr. Roman regarding ice on the top step. Prior to the incident, he could not remember if he saw any ice on the top step. He did not think he did. He is unaware of anyone making complaints to Mr. Roman regarding snow and ice on the staircase prior to the incident.

Defendant David Roman appeared for an examination before trial on November 8, 2016. He testified that he co-owned the subject property for the past fifteen years with his wife, defendant Jacqueline Roman. At the time of the incident, he was splitting his time between the subject property and 28 Kendrick Lane, Dix Hills, New York. He could not remember the last time he visited the subject property prior to the date of the incident. At the time of the incident, whenever necessary, snow removal would be performed by his neighbor's son, "Adelpho", who he would pay. The last time it had snowed prior to the incident was Wednesday. Between Wednesday and Saturday, he recalls speaking with Adelpho on the telephone. Adelpho advised him that the steps had been cleared. Adelpho also told him that they used a snow blower, ice melt, and shoveled. He could not remember what day this telephone conversation took place. While he did not receive any complaints of icy conditions prior to the subject incident, [*3]he may have received comments from tenants that it felt slippery. He thinks that his tenant, John, said he almost slipped and fell on the steps. At no time was he aware of any water leaking onto the steps either from the gutter or the roof. He first learned of the incident when he received a phone call from plaintiff at approximately 8:00 a.m. Plaintiff advised that he had slipped and fallen on the steps. He arrived at the subject property around 8:30 a.m. and took photographs. The photographs are annexed to the motion papers and depict the condition of the steps when he arrived. He did not observe any snow or ice on the steps.

Defendant Jacqueline Roman submits an affidavit dated September 27, 2017. She affirms that she has jointly owned the subject property with her husband, defendant David Roman, for fifteen years. In March of 2015, and prior to that date, whenever necessary, Adolfo Nunez would perform snow removal at the property. The snow removal would involve removal of snow and ice on the adjacent public sidewalk as well as the walkway, steps, and landing leading to the front entrance. At no time prior to the subject incident, did she receive any complaints from plaintiff or anyone else concerning ice or snow on the front steps. At no time prior to the subject incident, was she aware of any conditions involving water dripping or flowing off of the building onto the steps and causing any ice to form. She does not recall being present at the subject property for at least one week prior to the incident. She was not made aware of any ice conditions existing on the staircase during that time frame.

Defendants also submit certified copies of weather and climatological data, which indicate that there was a snowfall of 5.8 inches on March 5, 2015. There was no precipitation on either March 6, 2015 or March 7, 2015. The temperature remained below freezing from midnight March 5, 2015 through 10:00 a.m. on March 7, 2015.

Based on the submitted evidence, defendants contend that summary judgment is warranted as they did not create any icy condition and they did not have actual or constructive notice of any such condition.

In opposition, plaintiff submits an affidavit dated January 6, 2018. He affirms that, inter alia, he left his apartment the night before his fall after 8:00 p.m. Upon his return from a Chinese food restaurant, he did not notice any ice on the steps because it was too dark to see. After his fall, he was able to see ice on the first step of the stairs and on the handrail because it was sunny and bright out. He did not see any salt or sand placed on the outside stairs in March 2015, prior to his fall. He did not witness anyone cleaning/removing snow on the outside stairs in March 2015, prior to his fall.

Plaintiff also submits a meteorologist affirmation from Joseph P. Sobel along with certified copies of NOAA National [*4]Climatic Data Center reports. Mr. Sobel affirms that he is the Senior Vice-President, Director of Forensic Services, of AccuWeather, Inc., a weather reporting and analysis company. Based on his review of sources, information, the location and description of the stairs at the time of the incident, plaintiff's deposition and affidavit, defendant's deposition, and the photographs, Mr. Sobel opines that defendants or their agents shoveled the snow on the steps so that piles of snow remained on the left side of the stairs, if you are looking at the building. As natural melting occurred, those piles of snow/ice melted, creating a wet surface on the steps which subsequently refroze due to the sun setting and temperatures dropping and caused an icy condition/ice patches. The failure to properly remove the aforesaid snow and ice from the previous storms and overall precipitation from March 1, 2015 to March 5, 2015 was a contributing factor to the icy condition of the outdoor stairs at the time of plaintiff's fall.

Counsel for plaintiff contends that defendants failed to meet their prima facie burden in establishing that they did not cause or create the icy condition. Counsel contends that Adelpho's snow removal efforts were negligent and created the ice condition that cased plaintiff to slip and fall. Additionally, counsel contends that defendants failed to establish that they lacked actual or constructive notice of the icy condition.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his or her position (see Zuckerman v City of New York, 49 NY2d 557 [1980]). A defendant owner who is responsible for maintaining a premises who moves for summary judgment in a slip-and-fall or trip-and-fall case involving the property has the initial burden of making a prima facie showing that he or she neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Bloomfield v Jericho Union Free School Dist., 80 AD3d 637 [2d Dept. 2011]; Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept. 2009]; Bruk v Razag, Inc., 60 AD3d 715 [2d Dept. 2009]). "To meet their initial burden on the issue of lack of constructive notice, the defendants must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Birnbaum v New York Racing Association, Inc., 57 AD3d 598 [1986]; see Pryzywalny v New York City Tr. Auth., 69 AD3d 598 [2d Dept. 2010]; Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept. 2009]; Braudy v Best Buy Co., Inc., 63 AD3d 1092 [2d Dept. [*5]2008]).

Upon review and consideration of defendants' motion, and plaintiff's opposition thereto, this Court finds that the evidence submitted by defendants was not sufficient to demonstrate, prima facie, that defendants did not create the icy condition nor to show that they did not have actual or constructive notice of the condition prior to plaintiff's fall.

Mr. Roman testified that two tenants told him that the stairs were slippery. Although Mr. Roman could not state when these conversations with his tenants occurred, viewing the evidence in the light most favorable to the non-moving party, defendants failed to establish that they did not have actual notice of the condition. Moreover, defendants failed to offer sufficient evidence as to when the subject premises had last been inspected subsequent to the snowfall the week of plaintiff's fall. Defendants also failed to provide evidence regarding any particularized or specific inspection or cleaning procedure in the area of plaintiff's fall on the date of the incident or after the last snowfall. Defendants have no personal knowledge of what snow removal procedure was followed in response to the snowstorm preceding the date of the incident. This Court notes that Adelpho did not submit an affidavit regarding his snow removal efforts. Mr. Roman was unable to establish what day it snowed, what day that snow was cleared, or what day he spoke to Adelpho on the telephone. Thus, defendants failed to make a prima facie showing that they did not have constructive notice of the alleged icy condition which caused plaintiff's fall (see Baratta v Eden Roc NY, LLC, 95 AD3d 802 [2d Dept. 2012]; Levine v Amverserve Assn., Inc., 92 AD3d 728 [2d Dept. 2012]; Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept. 2009]; Rodriguez v Bronx Zoo Rest., Inc., 110 AD3d 412 [1st Dept. 2013).

As defendants failed to establish their entitlement to judgment as a matter of law, it is not necessary to consider the sufficiency of the opposition papers submitted by plaintiff (see Dixon v Superior Discounts & Custom Muffler, 118 AD3d 1487 [2d Dept. 2014]; Maloney v Farris, 117 AD3d 916 [2d Dept. 2014]; Giraldo v Twins Ambulette Serv., Inc., 96 AD3d 903[2d Dept. 2012]; King v 230 Park Owners Corp., 95 AD3d 1079[2d Dept. 2012]; Hill v Fence Man, Inc., 78 AD3d 1002 [2d Dept. 2010]).

In any event, plaintiff's opposition raises triable issues of fact regarding, inter alia, whether the ice upon which plaintiff slipped was formed when the snow pile created by defendants' agent's snow removal efforts melted and refroze (see Knee v Trump Vil. Constr. Corp., 15 AD3d 545 [2d Dept. 2005]; Cody v DiLorenzo, 3034 AD2d 705 [2d Dept. 2003]; Baillet v Auerbach, 277 AD2d 335 [2d Dept. 2000]).

Accordingly, and for the reasons stated above, it is hereby,

ORDERED, that defendants DAVID ROMAN and JACQUELINE ROMAN's [*6]motion for summary judgment is denied.

Dated: February 26, 2018

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.