Montalvo v Cromwell Towers Apts. Ltd. Partnership

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Montalvo v Cromwell Towers Apts. Ltd. Partnership 2020 NY Slip Op 34826(U) December 21, 2020 Supreme Court, Westchester County Docket Number: Index No. 63724/2018 Judge: Sam D. Walker 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] WESTCHESTER COUNTY CLERK 01/12/2021 11:55 AM NYSCEF DOC. NO. 62 INDEX NO. 63724/2018 RECEIVED NYSCEF: 01/12/2021 commence the the statutory statutory To commence time for for appeals appeals as of of right right time 5513[a]), you you are (CPLR 5513[a]), advised to to serve serve a copy copy advised of this this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. of SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK SUPREME YORK COUNTY OF WESTCHESTER COUNTY WESTCHESTER PRESENT: HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. PRESENT: -----------------------------------------------------------------------------x -----------------------------------------------------------------------------x VERONICA MOYA MOYA MONTALVO, MONTALVO, VERONICA Plaintiff, Plaintiff, -against-against- DECISION & ORDER ORDER DECISION Index No. 63724/2018 63724/2018 Index Motion Sequence Sequence 2 Motion CROMWELL TOWERS APARTMENTS LIMITED CROMWELL TOWERS APARTMENTS LIMITED PARTNERSHIP and METROPOLITAN METROPOLITAN REAL REALTY GROUP, PARTNERSHIP TY GROUP, LLC, Defendants. Defendants. ---------------------------. ----------------------------------------------X ---------------------------~----------------------------------------------x The following following papers papers were were received received and considered considered in connection connection with the aboveaboveThe captioned matter: matter: captioned Notice of Motion/Affirmation/Exhibit Motion/Affirmation/Exhibit A Notice Affirmation Opposition Affirmation in Opposition Reply Affirmation Reply Affirmation Factual and Procedural Procedural Background Background Factual The plaintiff, plaintiff, Veronica Veronica Moya Moya Montalvo Montalvo ("Montalvo/plaintiff"), ("Montalvo/plaintiff"), commenced commenced this action action The 31,2018, recover for for alleged alleged personal personal injuries injuries she sustained sustained on February February 17, on August August 31, 2018, to recover 2018, at approximately approximately 10:30 10:30 p.m., as a result result of a slip and fall on snow snow and ice on the 2018, sidewalk abutting abutting the premises premises owned owned by the defendants, defendants, Cromwell Cromwell Towers Towers Apartments Apartments sidewalk limited Partnership Partnership ("Cromwell") ("Cromwell") and Metropolitan Metropolitan Realty Realty Group, Group, LLC ("Metropolitan") ("Metropolitan") Limited (collectively the "defendants"), "defendants"), located located at 77 Locust Locust Hill Avenue, Yonkers, New New York York (the (collectively Avenue, Yonkers, "premises"). "premises"). 1 of 8 [*FILED: 2] WESTCHESTER COUNTY CLERK 01/12/2021 11:55 AM NYSCEF DOC. NO. 62 INDEX NO. 63724/2018 RECEIVED NYSCEF: 01/12/2021 This· Court This Court previously previously granted granted the defendants' defendants' motion motion for summary judgment for summary judgment pursuant pursuant to CPLR CPLR 3212 3212 and dismissed dismissed the complaint. complaint. The The plaintiff plaintiff now now files files the instant instant motion, motion, arguing arguing that that the Court Court erroneously erroneously overlooked overlooked and/or and/or misunderstood misunderstood the underlying underlying facts facts and misapplied misapplied the controlling controlling legal authority. authority. The The plaintiff's plaintiff's attorney attorney contends contends that that the the Court Court made made factual determinations in violation review standards factual determinations violation of of review standards for summary judgment motions summary judgment motions and misinterpreted misinterpreted and ignored ignored significant significant pieces pieces of evidence. evidence. Specifically, Specifically, the attorney attorney argues argues that that the Court Court misinterpreted misinterpreted and ignored ignored facts facts about about snow snow shoveling shoveling of the sidewalk sidewalk where where the plaintiff plaintiff fell and misinterpreted misinterpreted evidence evidence regarding regarding eye-witness eye-witness observations observations about about snow removal. The The attorney attorney asserts asserts that that the snow removal. conflicting submitted by both sides conflicting affidavits affidavits submitted motion for sides dictated dictated that that the the motion for summary summary judgment should judgment should have have been been denied. denied. In opposition, opposition, the defendants' defendants' attorney attorney argues argues that the plaintiff's plaintiff's counsel counsel did not that the annex the annex the prior prior motion motion papers papers as an exhibit exhibit to the motion motion to reargue, reargue, nor did he provide provide the NYSCEF NYSCEF document document numbers numbers for for the previously previously e-filed e-filed documents documents referenced referenced in the motion, motion, as required required by CPLR CPLR 2214[c] 2214[c] and therefore, motion to reargue reargue should should be therefore, the the motion summarily summarily denied denied for this reason reason alone. alone. for this The The defendants' defendants' attorney attorney further further argues argues that that the the plaintiff plaintiff failed failed to present present any admissible admissible evidence, evidence, other other than speculation speculation and conjecture, conjecture, which which is insufficient insufficient to raise a triable triable issue of fact. The The attorney issue of attorney contends contends that Court did not not overlook overlook or misinterpret misinterpret that the the Court any facts nor misapply the law in deciding any facts misapply the deciding the motion motion for summary judgment, correctly for summary judgment, but correctly granted the motion. motion. granted 2 2 of 8 [*FILED: 3] WESTCHESTER COUNTY CLERK 01/12/2021 11:55 AM NYSCEF DOC. NO. 62 INDEX NO. 63724/2018 RECEIVED NYSCEF: 01/12/2021 The defendants' attorney argues argues that that it is undisputed undisputed that that the the snow, snow, ice and slush slush The _defendants' attorney that the the plaintiff plaintiff alleges alleges to have have slipped slipped on, were were entirely entirely formed formed by the the snow snow that that that developed between between 5:15 5:15 p.m. and 5:30 5:30 p.m. on the date date of of the the plaintiff's plaintiff's alleged alleged accident accident developed was part part of an ongoing ongoing storm, storm, which which was was in progress progress and producing producing accumulating accumulating and was snow on the the subject subject sidewalk sidewalk at the time time of of the the plaintiff's plaintiff's alleged alleged accident. accident. snow The attorney attorney further further argues argues that that the the admissible admissible evidence evidence established established that that the The defendants did not shovel shovel the the sidewalks sidewalks while while the the storm storm was was in progress, progress, nor nor did they they do defendants anything to cause, cause, create create or exacerbate exacerbate the the condition condition that that the the plaintiff plaintiff alleges alleges caused caused her anything accident. Therefore, Therefore, the the storm storm in progress doctrine and Article Article II, Section Section 103-8 103-8 of of the the City accident. progress doctrine Yonkers Code, Code, both bar bar the the plaintiffs plaintiff's claim claim and prevent prevent the the defendants defendants liability. liability. of Yonkers the plaintiff's plaintiff's attorney attorney submitted submitted the the documents documents from from the the previously previously e-filed e-filed In reply, the summary judgment motion summary judgment motion11 and argues argues that that the defendants defendants did not address address any any of of the specific arguments arguments raised raised by the the plaintiff, plaintiff, in that, that, the the plaintiff plaintiff submitted submitted affidavits affidavits from from eyeeyespecific witnesses. He states states that that Lorenzo Lorenzo Garcia Garcia ("Garcia"), ("Garcia"), the the plaintiffs plaintiff's neighbor, neighbor, testified testified that that witnesses. previously observed observed people people who who were were identified identified to him as Cromwell Cromwell Towers Towers employees employees he previously shoveling snow snow in the the area area where where the plaintiff plaintiff fell and Tyrone Tyrone Barner Barner ("Barner"), ("Barner"), the shoveling plaintiff's friend, friend, specifically specifically observed observed an individual individual shoveling shoveling snow snow in the the area area where where the plaintiff's plaintiff fell and also also testified testified that that the the door door to the storage storage room, room, where where Cromwell Cromwell Towers Towers plaintiff personnel personnel testified testified that that they they ·kept "kept their their snow snow removal removal equipment, equipment, was was open open during during the the shoveling. shoveling. 11Since Since the plaintiff's plaintiff's attorney attorney submitted submitted the the reference reference to the the underlying underlying motion motion the papers with his reply reply papers, papers, the the Court Court does does not deny deny the the motion motion on such such grounds. grounds. papers 3 3 of 8 [*FILED: 4] WESTCHESTER COUNTY CLERK 01/12/2021 11:55 AM NYSCEF DOC. NO. 62 INDEX NO. 63724/2018 RECEIVED NYSCEF: 01/12/2021 The plaintiff's plaintiff's attorney attorney further further argues argues that that the the defendants' defendants' attorney attorney did not address address The argument that that the the Court Court failed failed to consider consider that that three three ._maintenance maintenance workers, workers , his argument superintendent, Rafael Rafael Medina Medina ("Medina") ("Medina") and additional additional maintenance maintenance workers, workers, Eberton Eberton superintendent, Gibbedon ("Gibbedon") ("Gibbedon") and Mariano Mariano Suazo Suazo ("Suazo"), ("Suazo"), all lived on the the premises, premises, would would be Gibbedon involved in the the snow snow removal removal process process and that that it was was entirely entirely possible possible that that any any or all of involved these individuals individuals could could have have been been the one one who who was was observed observed shoveling shoveling snow. snow. He also also these argues that that there there is no testimony testimony that that a Cromwell Cromwell representative representative would would only only be wearing wearing the argues Cromwell coat, coat, but but simply simply that that the the coats coats were were supplied supplied by the the defendants. defendants. The The attorney attorney Cromwell contends that that the defendants defendants do not contest contest that that the the subject subject sidewalk sidewalk was was shoveled shoveled and contends barely addresses addresses the testimony testimony of of three three eyewitnesses eyewitnesses who who testified testified that that the the sidewalk sidewalk area barely where the plaintiff plaintiff slipped, slipped, was was shoveled. shoveled. where Discussion Discussion motion for for reargument reargument must must be "based "based upon upon matters matters of of fact fact or law allegedly allegedly A motion overlooked or misapprehended misapprehended by the court court in determining determining the the prior prior motion, motion, but shall shall not overlooked include any any matters matters of of fact fact not not offered offered on the the prior prior motion," motion," (CPLR (CPLR 2221[d][2]). 2221 (d][2]). Such Such include motions are addressed addressed to the the sound sound discretion discretion of the Supreme Supreme Court, Court, (see (see Deutsche Deutsche Bank Bank motions Trust Co. v Ramirez, Ramirez, 117 AD3d AD3d 674 674 [2d (2d Dept Dept 2014]). 2014]). A motion motion for for leave leave to reargue reargue is Nat. Trust thus not one one which which provides provides an unsuccessful unsuccessful party party with successive successive opportunities opportunities to reargue reargue thus the very very questions questions previously previously decided; decided; nor is it one one that that provides provides a platform platform for for the the the presentation of arguments arguments different different from those already already presented; presented; or the the taking taking of a from those presentation position inconsistent inconsistent from from that that assumed assumed initially, initially, (see V. V. Veeraswamy Veeraswamy Realty Venom Realty v Yenom position 4 of 8 Com .... 71 71 AD3d AD3d 874 f2d Deot Dept 20101; Woody's Lumber Com 20101: Woodv's Lumber Co., Inc. v Jayram Jayram Realty Realty Corp., 30 [*FILED: 5] WESTCHESTER COUNTY CLERK 01/12/2021 11:55 AM NYSCEF DOC. NO. 62 INDEX NO. 63724/2018 RECEIVED NYSCEF: 01/12/2021 AD 3d 590 [2d Dept Dept 2006]; 2006]; Williams Williams v Board Board of of Educ. of of City City School School Dist. of of New New York City, AD3d 24 AD 3d 458 458 [2d Dept Dept 2005]; 2005]; Simon Simon v Mehryari, Mehryari, 16 AD3d Dept 2005]). 2005]). AD3d AD3d 543 [2d Dept review of the arguments arguments made made on the the motion motion to reargue, reargue, the Court Court now Upon a review denies the plaintiff's plaintiff's motion. motion. There There is no dispute dispute that that the plaintiff's plaintiff's alleged alleged slip and fall denies accident occurred occurred during during an ongoing ongoing storm storm in progress. progress. The The defendants defendants submitted submitted an accident affidavit of a meteorologist, meteorologist, George George Wright, Wright, CCM ("Wright"), ("Wright"), who who reviewed reviewed the relevant relevant affidavit documentation and stated stated that that snow snow developed developed between between 5: 15 p.m. and 5:30 5:30 p.m., and the documentation temperature was was 35°, or 3° above above freezing. freezing. The The temperature temperature cooled cooled to 33° by 6:00 6:00 p.m. temperature remained steady steady at that that temperature temperature through through midnight. midnight. As a result result of the freezing freezing and remained temperature, the the snow snow that that fell formed formed slush slush on the sidewalk, sidewalk, since since a portion portion of the snow snow temperature, that had accumulated accumulated melted. melted. Wright Wright stated stated that that the snow from 5:15/5:30 5:15/5:30 p.m. through through that snow fell from midnight, until approximately approximately 1:15 a.m., a.m., on February February 18, 2018. 2018. He states states that that between between 6 midnight, inches of snow snow fell at the premises premises through through the time time of the the plaintiff's plaintiff's alleged alleged and 6/5 inches accident. accident. addition, the defendants' defendants' property property manager, manager, John John Carollo Carollo ("Carollo"), ("Carollo"), testified testified that that In addition, the' building's building's maintenance maintenance staff staff is on duty duty from from 7:00 7:00 a.m. until 4:00 4:00 p.m. and that that the the· building's snow snow removal removal policy policy and procedure procedure is that that if it first first starts starts snowing snowing after4:00 after4:00 p.m., building's any given given day, the the maintenance maintenance staff staff does does not stay stay overtime overtime to remove remove the snow, snow, but on any they come come to the premises premises early early the following following morning morning to remove remove the snow. snow. In the reply they papers, papers, Carollo Carollo alsq submitted submitted copies copies of the Time/Attendance Time/Attendance Detail, Detail, showing showing the the times times that the employees' employees' shift shift ended ended on the day day of the plaintiff's plaintiff's alleged alleged accident. accident. that 5 of 8 [*FILED: 6] WESTCHESTER COUNTY CLERK 01/12/2021 11:55 AM NYSCEF DOC. NO. 62 INDEX NO. 63724/2018 RECEIVED NYSCEF: 01/12/2021 after snowing after starts snowing that if it starts confirmed that Med ina, the premises, confirmed the premises, for the superintendent for the superintendent Medina, the maintenance the maintenance maintenance staff's staff's shift ends, neither neither he nor the maintenance staff staff remove remove the snow snow shift ends, remove the snow they remove on the the sidewalks sidewalks abutting abutting the premises premises that that day, but they snow early early the following morning. morning. Similarly, Similarly, Aldolfo ("Diaz"), one one of the Aldolfo Diaz ("Diaz"), following porters porters on duty duty at the after the maintenance premises that that day, testified testified that that if it starts starts snowing snowing after maintenance staff's staff's shift shift ends, premises sidewalks the sidewalks snow on the the snow remove the the maintenance overtime to remove stay overtime does not stay staff does maintenance staff following morning. the following early the snow early the snow abutting premises that remove the morning. they remove that day, but they the premises abutting the of showing of facie showing The make a prima prima facie evidence to make sufficient evidence tendered sufficient defendants tendered The defendants forth failed set forth the plaintiff opposition, the entitlement matter of law. In opposition, plaintiff failed judgment as a matter entitlement to judgment the existence evidentiary proof proof in admissible admissible form establish the existence of of a material material issue issue of of fact. form to establish evidentiary The plaintiff"s opposition based upon speculation speculation and conjecture conjecture and not upon any opposition is based The plaintiff"s that the defendants admissible evidence, evidence, since since there admissible evidence evidence that defendants caused, caused, there is no admissible admissible accident. her accident. caused her alleges caused created or exacerbated exacerbated the condition, condition, which plaintiff alleges which the plaintiff created shoveling the anyone shoveling observed anyone Garcia observed Neither the plaintiff, nor her her neighbor neighbor Garcia the plaintiff, Neither that appeared to her that it appeared claims that premises prior prior to the plaintiff's alleged plaintiff claims her that The plaintiff alleged fall. The the plaintiff's premises she admitted accident, but at her the been shoveled prior to her accident, her deposition, deposition, she admitted shoveled prior sidewalk had been the sidewalk also accident. Garcia of her accident. day of the day that she did not see see anyone anyone shoveling shoveling the sidewalk on the Garcia also the sidewalk that she sidewalk had been the sidewalk that the states Montalvo, it appeared been appeared to him that assist Montalvo, went to assist when he went that when states that that he did not see anyone shoveled. However, at his deposition, deposition, Garcia Garcia admitted admitted that anyone shoveled. However, shoveling the sidewalk on the day of Montalvo's Montalvo's alleged alleged accident. accident. the day the sidewalk shoveling issue of create an issue insufficient to create Barner's affidavit is also speculation and insufficient based on speculation also based Barner's affidavit daylight on 5:00 p.m. and still daylight after 5:00 fact motion. He averred that after averred that defendant's motion. the defendant's defeat the fact to defeat 6 6 of 8 [*FILED: 7] WESTCHESTER COUNTY CLERK 01/12/2021 11:55 AM NYSCEF DOC. NO. 62 INDEX NO. 63724/2018 RECEIVED NYSCEF: 01/12/2021 sidewalk rear sidewalk the rear shoveling the individual shoveling the day of of the plaintiff's's alleged alleged acciden accident,t, he saw saw an individual the plaintiff the day or describ e or does not of premises, rear garage However,r, Barner Barner does not describe open. Howeve door open. garage door the rear with the s, with the premise of the Towers" "Cromwell Towers" the "Cromwell wearing the was wearing person was identify the individual does he state state that that the person nor does al nor the individu identify they perform when they wear when staff wear ance staff patch on heavy-duty blue coat, as the maintenance perform the mainten dark blue uty dark a heavy-d on a patch snow removal,l, as attested attested to by Carollo Carollo.. snow remova remove to remove shovels to use shovels porters use building porters the building Further,, the only the that only testified that defend ants testified the defendants Further nor not plow did not he did that he testified that snow premisess and Medina Medina testified plow nor the premise abutting the sidewalks abutting the sidewalks on the snow on time defend ants' time The defendants' accident. The alleged accident. shovel plaintiff's's alleged the plaintiff of the day of the day sidewalk on the the sidewalk shovel the the day of the day were on duty who were records show show that Diaz and Suazo, Suazo, the only porters porters who duty the of the the only that Diaz records even snow even the snow 3:15 p.m., plaintiff's 1:02 p.m., long before before the :02 p.m. and 3:15 work by 1 left work accident, left alleged accident, plaintiff's alleged living worker living ance worker Suazo and anothe started. plaintiff's's assertion Medina,, Suazo anotherr mainten maintenance that Medina assertion that The plaintiff started. The an create an to create sufficient to on speculation and is not sufficient question of fact, is speculation creates a question premises creates the premises on the issue of of fact. issue 5: 15 between 5:15 from between continually from In addition, per the snow fell continually meteorologist, the snow the meteorologist, as per addition, as In that shoveling that Therefore, any fall. Therefore, alleged fall. p.m. and plaintiff's's alleged any shoveling the plaintiff after the 5:30 p.m. until after and 5:30 p.m. following snow following amoun t of snow significant amount Barner over by a significant covered over been covered have been would have observed would Barner observed still would still storm in progres the storm and the the Barner observed individual progresss rule rule would shoveling and al shoveling the individu observed the time Barner the time the that the show that to show evidenc e to admissible evidence any admissible be applica applicable, since the plaintiff failed present any failed to present the plaintiff ble, since be when was when which was observation, which defendants premisess subsequent Barner'ss observation, subsequent to Barner' the premise shoveled the defend ants shoveled Therefore, fall. Therefore, alleged fall. plaintiff's alleged the plaintiff's before the the storm storm first first began, began, some some four hours before more hours four or more the snow attempted to remove defend ants attempted the remove snow the defendants that the evidence that there is no evidence that there finds that Court finds the Court condition. danger ous condition. or ice ice and did so neglige negligently, creating a dangerous thereby creating ntly, thereby or 7 7 of 8 [*FILED: 8] WESTCHESTER COUNTY CLERK 01/12/2021 11:55 AM NYSCEF DOC. NO. 62 INDEX NO. 63724/2018 RECEIVED NYSCEF: 01/12/2021 Accordingly, based on the foregoing, foregoing, it is Accordingly, based ORDERED that that the defendants' defendants' motion motion for for is DENIED. DENIED . ORDERED The foregoing foregoing constitutes constitutes the Decision Decision and Order Order of the Court. Court. ·. The Dated: White White Plains, Plains, New New York Dated: York December 21,2020 December 21, 2020 ~SJ.~ HON. SAM D. WALKER, J.S.C. \L 8 8 of 8

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