Adrat v Cardiff Bay Ctr., LLC

[*1] Adrat v Cardiff Bay Ctr., LLC 2018 NY Slip Op 51573(U) Decided on November 13, 2018 Supreme Court, Queens County Modica, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2018
Supreme Court, Queens County

Ileana Adrat, Plaintiff,

against

Cardiff Bay Center, LLC, Defendants.



11724/2015



For the Plaintiff: Lurie & Flatow, P.C., by Jay Flatow, Esq., 420 Lexington Avenue (suite 2920), New York, New York 10170-0002

For Defendants: Furman Kornfeld & Brennan LLP, by Anthony V. Franzolin, Esq., 61 Broadway (26th floor), New York, New York 10006
Salvatore J. Modica, J.

Papers Numbered

Motion 1-18

Opposition 19-30

Reply 31-33

This is a slip and fall case occurring under rather unusual circumstances. On February 20, 2014, Ileana Adrat was on duty as an Emergency Medical Technician for the New York City Fire Department. One of defendant's employees called for help to transport a morbidly obese patient from a nursing home facility it operated at 50-15 Beach Channel Drive in Queens County, New York. Plaintiff was in the course of her employment and assisting in the transportation of this patient to an awaiting New York City ambulance known as a multi-casualty rolling transport with a bariatric stretcher for obese patients.

While discharging her responsibilities to this patient, the plaintiff contends that she fell on ice that was underneath a patch of snow on the sidewalk in front of and/or adjacent to the walkway leading to from the entrance to the nursing home facility owned by the defendant. According to the plaintiff, it had rained, snowed, and drizzled during the daytime hours of Feb. 20, 2014. Nevertheless, the temperature on that day was above freezing, and there was no storm [*2]in progress. The week before the accident, there was already a significant amount of snow on the ground, from three to four snow falls.

The defendant moves for summary judgment. Both sides acknowledge that New York City Administrative Code section 7-210(b) requires a property owner to remove snow and ice from the sidewalk outside its property. New York City Administrative Code section 16-123(a), in addition, provides a property owner with a four-hour time frame to clear such snow and ice.

Defendant has presented the eyewitness testimony of Lawrence Murray to demonstrate that the nursing home had indeed shoveled its walk completely before the plaintiff's accident.In addition, the defendant notes that the plaintiff's EBT testimony demonstrates that she could not definitively state that her fall occurred on the sidewalk. Accordingly, the defendant claims, the plaintiff must have slipped on the street, and not on the sidewalk. Based on plaintiff's description in her EBT, defense counsel's expert engineer, David Behnken, P.E., took measurements of the bariatric ambulance into which the plaintiff was assisting the morbidly obese patient. According to the defendant, based on those measurements, "the laws of physics do definitively establish that the plaintiff was standing in the street, not on the subject sidewalk, at the time of the alleged incident." Moving Affirmation of Anthony V. Franzolin, Esq., para. 40, p.26.

In addition, defendant suspects that plaintiff was not paying any attention to the pavement on which she stood, because of her concern for the safe transport and difficulties encountered in moving a morbidly obese patient.

Plaintiff, in contrast, vigorously asserts that the defendant's contention that plaintiff fell at the time that the ice and snow were accumulating is not supported in the "Local Climatological Data Hourly Observations" for February 20, 2014, recorded at JFK International Airport, in Queens County, New York, located about two miles away from where the accident occurred.

Based on the evidence presented by the parties, this Court believes that numerous genuine issues of material fact exist as to require denial of the present defense motion and resolution by a trier of fact. Among the issues requiring determination at trial are whether the accident occurred on the sidewalk or on the street, and, even if the accident occurred on the sidewalk of the defendant's property, whether an accumulation of ice allegedly on the landowners' sidewalk was the cause of the plaintiff's fall, whether landowners had constructive notice of hazardous condition posed by icy sidewalk, and whether the plaintiff's EMT's duties might be determined to be an intervening cause, as defendant contends. See, Diaz v. City of New York, 93 AD3d 755 (2nd Dept. 2012) (material issues of fact existed as to whether snow removal methods employed by those that either owned or occupied premises adjacent to street where pedestrian slipped and fell on patch of snow and ice as she stepped off sidewalk had created or exacerbated allegedly hazardous condition consisting of snow and ice piled on side of street, precluding summary judgment for owner and occupants in pedestrian's personal injury action); Pacelli v. Pinsley, 267 AD2d 706 (3rd Dept. 1999).

Putting aside the issue of the timeliness of the motion for summary judgment, it is denied in its entirety for the aforementioned substantive reasons.

The parties shall appear at the Trial Scheduling Part, at the courthouse located at 88-11 Sutphin Boulevard, Jamaica, New York 11435, on November 28, 2018, at 9:30 A.M., as already scheduled, for trial.

The foregoing constitutes the decision, order, and opinion of the Court.

Dated: November 13, 2018

Jamaica, New York

Honorable Salvatore J. Modica

J.S.C.