Hernandez v 2800 LLC

[*1] Hernandez v 2800 LLC 2018 NY Slip Op 51272(U) Decided on September 5, 2018 Supreme Court, Bronx County Higgitt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 5, 2018
Supreme Court, Bronx County

Justo Hernandez and Cecelia Hernandez, Plaintiffs,

against

2800 LLC, Defendant.



20780/2014E



Plaintiffs' counsel: The Felicetti Law Firm (Scott A. Felicetti, Esq.)

Defendant's counsel: Gallo Vitucci Klar LLP (Beth L. Weinberg, Esq.)
John R. Higgitt, J.

In an action to recover damages, among other things, for personal injuries plaintiff Justo Hernandez ("the injured plaintiff") sustained as a result of a slip-and-fall accident that occurred on defendant's premises, defendant seeks summary judgment dismissing the complaint.[FN1] For the reasons that follow, the motion is granted in part and denied in part.

At approximately 10:15 am on January 5, 2014, the injured plaintiff attempted to exit the Bronx apartment building in which he resided. The building, which was owned by defendant, had a ramp at the front entrance that led from the threshold of the front entrance to the abutting sidewalk. The injured plaintiff opened the front door of the premises, took two steps onto the ramp, and slipped and fell on snow, ice or both that was present on the ramp.

The injured plaintiff commenced this action to recover damages against defendant; the injured plaintiff's wife asserted a derivative claim. In their bill of particulars, plaintiffs alleged, among other things, that defendant was negligent in failing to remove snow and ice from the ramp, and "[i]n failing to provide a rail or railings." Issue was joined and discovery was undertaken.

Defendant seeks summary judgment dismissing the complaint. Defendant's principal contention is that plaintiffs' claims are precluded by the storm-in-progress doctrine because it was snowing at the time of the injured plaintiff's accident. The motion is supported by, among other things, the injured plaintiff's deposition testimony, the plaintiff wife's deposition testimony, defendant's field manager's deposition testimony, and the field manager's affidavit.

Plaintiffs oppose the motion, arguing that defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, and, alternatively, that their evidence raises triable issues of fact. With regard to the latter, plaintiffs argue that triable issues of fact exist as to [*2]whether a storm was in progress at the time of the accident; whether any snow and ice removal efforts by defendant created or exacerbated the hazardous condition of the ramp; and whether the ramp failed to comply with various property maintenance regulations and guidelines, and, therefore, whether the ramp constituted a hazardous condition. Plaintiffs submitted, among other things, certified climatological records of the National Oceanic and Atmospheric Administration reflecting data collected in January 2014 at LaGuardia Airport in Queens, and the affidavit of a professional engineer who inspected the ramp in May 2015, approximately 16 months after the accident.

Under the storm-in-progress doctrine, a landowner is not liable for a plaintiff's injuries sustained as a result of a slippery condition occurring during an ongoing storm or for a reasonable time after the cessation of the storm (see Sherman v New York State Thruway Auth., 27 NY3d 1019, 1020-1021 [2016]; Solazzo v New York City Transit Auth., 6 NY3d 734, 735 [2005]). "The doctrine is not limited to situations where blizzard conditions exist; it also applies in situations where there is some type of less severe, yet still inclement, winter weather" (Camacho v Garcia, 273 AD2d 835, 835 [4th Dept 2000], quoting Olejniczak v E.I. du Pont de NeMours & Co., 79 F Supp 2d 209, 216 [WD NY 1999]; see Zima v North Colonie Central School District, 225 AD2d 993, 994 [3d Dept 1996] ["although it is clear that no major winter storm occurred at the time of the accident, the undisputed proof sufficiently establishes the existence of an ongoing hazardous weather condition that defendant was under no obligation to correct until a reasonable time after it had ended"]).

Here, the injured plaintiff testified that, at the time he exited the building, it was snowing. That evidence was sufficient to establish, prima facie, the applicability of the storm-in-progress doctrine (see Amato v Brookhaven Professional Park Ltd. Partnership, 162 AD3d 620, 621 [2d Dept 2018] ["the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence, including the plaintiff's own deposition testimony, demonstrating that a storm was in progress at the time of the subject accident"]; Gleeson v New York City Transit Auth., 74 AD3d 616, 616 [1st Dept 2010] ["defendant's employee's testimony that it was snowing at the time of the accident was sufficient to establish defendant's prima facie case"]).[FN2]

In opposition, plaintiffs failed to raise a triable issue of fact as to whether a storm was in progress at the time of the accident. The climatological data submitted by plaintiffs reinforces defendant's showing that the weather was inclement when the injured plaintiff fell. That data indicates that on January 5, 2014 the following weather conditions occurred at LaGuardia Airport, which is several miles from defendant's premises: rain, drizzle, freezing rain, freezing drizzle, fog, and mist. Also, that data indicates that there was precipitation between 10:00 am [*3]and 11:00 am.[FN3]

In light of plaintiffs' failure to raise a triable issue of fact regarding the applicability of the storm-in-progress doctrine, their claim premised on defendant's failure to remedy the snow and ice condition on the ramp must be dismissed. However, plaintiffs also claim that the ramp was defective and constituted a hazardous condition that proximately caused the injured plaintiff's injuries. The court concludes that the storm-in-progress doctrine does not apply to that claim.

The storm-in-progress doctrine protects those charged with clearing snow and ice from dangerous weather conditions, and reduces fruitless clean-up efforts (see Powell v MLG Hillside Assocs., L.P., 290 AD2d 345, 345 [1st Dept 2002]). Also, the doctrine limits a landowner's duty of care with respect to snow and ice conditions, and the landowner's liability for such conditions. The accommodations provided by the doctrine to a landowner reflect the fundamental purpose of the doctrine: to give a landowner a reasonable opportunity to safely and effectively remedy a hazardous condition created by an ongoing (or recently terminated) weather phenomenon. Where an alleged hazardous condition was comprised of something other than snow or ice, the accommodations provided by the doctrine are not necessary and therefore are inappropriate. Thus, the doctrine has no application to a plaintiff's claim that, even in the absence of the presence of snow or ice, a structure on or appurtenance to a defendant's property presented a hazardous condition that proximately caused the plaintiff's injuries.

Defendant failed to make a prima facie showing of entitlement to judgment as a matter of law dismissing plaintiffs' claim that the ramp presented a hazardous condition. In its motion papers, defendant did not address directly that claim; defendant focused its attention on its argument that the storm-in-progress doctrine warranted dismissal of the complaint. To the extent that defendant argues that it lacked notice of any defective condition associated with the ramp, defendant failed to eliminate all issues of fact as to whether it created any such condition and whether it had constructive notice of any such condition. Because defendant failed to meet its initial burden on that aspect of its motion seeking summary judgment dismissing the claim that the ramp presented a hazardous condition, that aspect of the motion must be denied.

In any event, plaintiffs raised triable issues of fact as to whether a handrail was required on the ramp, and, if so, whether the absence of a handrail was a proximate cause of the injured plaintiff's injuries (see Vosper v Fives 160th, LLC, 110 AD3d 544, 545 [1st Dept 2013]; see generally Turturro v City of New York, 28 NY3d 469, 484 [2016] ["There may be more than one proximate cause of an injury"] [internal brackets omitted]).[FN4] Notably, the evidence in the motion [*4]record establishes that the ramp never had a handrail, rendering academic any question regarding the timing of plaintiffs' expert's inspection. Thus, if a handrail was required — and plaintiffs' expert opines that it was — defendant may have failed to maintain the ramp in a reasonably safe condition.

Accordingly, it is hereby ORDERED that the aspect of defendant's motion seeking summary judgment dismissing plaintiffs' claim that defendant failed to remedy a snow and ice condition (or created or exacerbated one through snow-removal efforts) is granted and that claim is dismissed; and it is further,

ORDERED that defendant's motion is otherwise denied.

This constitutes the decision and order of the court.

Dated: September 5, 2018

Bronx, NY

Hon. John R. Higgitt

Acting Supreme Court Justice Footnotes

Footnote 1: By an order (Johnson, J.), dated September 4, 2018, the motion was referred to part 14.

Footnote 2: At her deposition, the plaintiff wife testified that she was alerted by some of her neighbors that her husband, the injured plaintiff, had an accident in the entranceway, and she went from the couple's apartment to the entranceway to assist him. Also, she testified that it was neither snowing nor raining when she arrived at the entranceway. This testimony does not demonstrate the existence of a triable issue of fact as to the applicability of the storm-in-progress doctrine. "The obligation to take reasonable measures to remedy a dangerous condition caused by a storm does not commence until a reasonable time after the storm has ended. Based on [the injured plaintiff's] testimony alone, a reasonable time had not yet elapsed" (Clement v New York City Transit Auth., 122 AD3d 448, 449 [1st Dept 2014]).

Footnote 3:Plaintiffs' argument that a triable issue of fact exists regarding whether defendant undertook remedial efforts that created or exacerbated a hazardous snow or ice condition that proximately caused the injured plaintiff's injuries is without merit. The evidence on which plaintiffs rely in this connection — the deposition testimony and affidavit of defendant's field manager — does not demonstrate that defendant's employee did in fact undertake remedial efforts on the morning of the injured plaintiff's accident. And no evidence suggests that any remedial efforts on defendant's employee's part caused or exacerbated a hazardous snow or ice condition (see Filius v New York City Housing Auth., 156 AD3d 434 [1st Dept 2017]).

Footnote 4: Because defendant failed to make a prima facie showing of entitlement to judgment as a matter of law dismissing plaintiffs' claim that the ramp presented a hazardous condition, and, in any event, plaintiffs raised triable issues of fact on their lack-of-handrail theory, the court need not and does not consider whether the remaining theories espoused by plaintiffs' expert are sufficient to raise a triable issue of fact.