Osipova v Friedman

Annotate this Case

Download PDF

Osipova v Friedman 2020 NY Slip Op 35321(U) September 17, 2020 Supreme Court, Kings County Docket Number: Index No. 510381/2018 Judge: Lara J. Genovesi 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. INDEX NO. 510381/2018 FILED: KINGS COUNTY CLERK 09/18/2020 02:43 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 09/18/2020 .tan IA Term, Part 34 o th up em ourt of tfo~ State of New Yot·k held in and for the County of Kings at the ourthouse thereof a:t 360 Adams St, Bro oldynt ew York on th 171h day of ptember 2020. PRE I T: HO _. LARA J.GE 0 L .C. VETL Index OIPOVA~ o.: 510 8,l/20 I 8, DECISIO & RD R -aga.instYEO I U · RJ -DMAN, Def; ndant. Recit. tion as required b CPLR 2219(a) f th papers considered in th r · i, w f thi mo ion: otic of M U niC:rnss Motion/Order to how Affidavit ause and filrmations) Annexed _ _ _ _ _- _ _ _ 13 - 24 Opposing Affidavits (Aflirmations) _ _ _ _ _ __ _ 26 - 31 Reply Af'idavits (Affirmations) _ _ _ _ _ _ _ _ __ 3 .l1ttrod11ctio11 ef; ndant Yeboshua Friedman mo by noti of motion sequ -n numb r on pursuant to CPLR § 3212 for summary judgm nt, dismi ing pJaintifT' P!aind omplaint. v tlana Osipova, opposes this app, ic tion. Back round l laintr f allegedly sustained pers nal inju1'ies on March 8, 2018, wh ll sl tripped and · ell on a1 accumulation of ice on the si ewa]k adjacent to the premis, lo at d at [* 1] 1 of 8 INDEX NO. 510381/2018 FILED: KINGS COUNTY CLERK 09/18/2020 02:43 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 09/18/2020 2270 g5t1t1 Street mvned by defendant. Pla1n1iff appeared at an examination befo BT) on Ma 23 2019 ,(see generally, trial Y ,, F Doc. # 19).. he testified that she pas d the premises_on her v ay to the tra~n at app o imat ly 7:00 a.m. on arch 8 201 . There was some snow and ice on th - ground from a pre ious snov fall (se,e id. at 9). Plaintiff testified that at the accident location th idewalk ~~looked clean" (td at 5). There was snow off to the sides; it look d a i · som on had shoveled the sidewa]k (see id). She does not reca11 whether she ob erv d salt or and on the sidewalk (see id.).. Her right foot sHpped on the sidewalk1 causing h r to . n (see id. Plaintiff marked photographs of th sid w lk boyfri nd which plaintiff states fair] and ac(UF t ] her deposi ion. taken by her how the area. where she fell. Thi d to · h mo ing papers. Plaintiff , ourt no s that these photographs are no,t ann t at 16). ified that he slipped on tire tr-a ks hO\:vn ind fi_ndant exhibit C (see id. at25). ' he t s i l d that the sid walk 27). as Upp ry bu he di not fall p for to tbe accident (see id. t he was looking straight ahead a sh ¥ 1k d and did not see the k-e befoJi she fol) (see id. at 27-29). She did not ]ook down beca s that bfock was shove]e<l (see id; at 29). Defendant appeared at an EBT on May 2· 2019 (see generally, NYSCEF Doc. i# 20), He is the owner of the premises in qu stion. Toe premises) a four-family d1;,111e1Hng i • currently occupied by nvo tenants on of whom :i his daugh ,er. There are two parking spa e in front ,o f the building us.ed b deli ndan hi daughter and sometiimes their n ighbor. The building has no superintend nl, · la·ntenan , e such as cleaning the sid walk aking th garbage out, calling rep irp bis wife (see id. at 20). \: ith resp ct t , n rem 2 [* 2] ~ 2 of 8 on are performed by defendant and r. lt defondant wouhl call someo11 if INDEX NO. 510381/2018 FILED: KINGS COUNTY CLERK 09/18/2020 02:43 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 09/18/2020 the storm was big (see id.}. Duri -· the n wfi 11 in • uestion th sid walk was clear,ed by defendmit's wife 'lata Friedman ( ee id. at 2 ). D f d nt t sti i d that his wife shoveled and salted the sidewal at 11 :00 .m.. n March 7~ 2018 ( e id. at 22). Defendant learned that a lady fell them rn·n (see id. at 32). When he arriv d atth sc• n was really dean· with 1 i . H _a, thatthe sid walk h did not ill round ( ee id. _· 5). Defendant o _ n two ehic] . H t tifi d that h parked m the dri _e, ay (see 1d. at 26)1. He . that both v hi 1e were t · t d ha h. .· hi I was in hi park·ng ~pace at 11 :00 p.m. th night b fore th a ident and h did not go,outsid .from 11:00 p.m. to 7:00 a.m. h foll.ow ng da ( e id. t 23,). H - d the second parking pac ( -ee id.). D fi ndant d exited the dri eway between th dm his ~ ire ho plaintifffeH at 7:00 a.m. (see id. at 40). no kn , if there, 1as ar in not know h th an cars nt red or I d at 11 :00 p.m. and th ·u park on dt t lim tre t, 1me h n a. spot. is a ailable (see id at 26 . Furth (see id. at 39). This I ourt no~ that ph t ti ndant s EBT v hich raph are not incJudcd in the mo ing p p rs. Zlata Friedman def1 ndant generally, NY app r d · F Doc.# 21). ~- Fr·! dm an BT n Ma_ 23 2019 (see 11 t.e • 1 d that h hov ] d th sidewalk and put salt down at I 1:00 p.m. on March 7, 2018, th nigh b · or th ac _ident. not c]ear any olher area (s e fd, at 13),. h- d s n tr m m er if there was a car parked in the driveway the mght b for th ac id nt s e id, at 14). the tire track aero s the idewalk the night b for whil 3 [* 3] he did 3 of 8 he do snot rnca11 see·1 g h veling (see id. at 20~2 ). INDEX NO. 510381/2018 FILED: KINGS COUNTY CLERK 09/18/2020 02:43 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 09/18/2020 nt inside 'there was nothing ... i was a]] dean" and she puts . ]t d .1 at 21). \Vn (ld. h testified that it was ~~still coming down when she finished sho eHng (see id. .at 23). · he does not know if it was snow or · r zing rain (see id.). Plaintiff in opposition provided th ph tographs marked at her EBT ( , EF Doc.# 7~28). The photographs tio th side alk outside of th pr m' most] cl r but now remaiJ1s in the dri , a which is located bet\ een th and th h use. The photograph mark d s xlnbit 1 id wa]k shows plaintiff on the gr nd holdin 1 h r I g, and behind her a snowy tire tra:c . from the driveway to the stt· t (se id. at 27). l'laintiff identified this tire track as th ice which caused her to fall. -lai ti furlh r pro ··- d oopi,es of nmnerou vi,oL tion i sued to defendant for an m gal urb F Do . 29). Th c rtified me eorological reco d sheville .orth Carolin n ir nmcntal ta.l h th re was precipitation from , ar h 6 2018 to M rch St 2018 (see NYSCEF Doc.# 24). On March 7. 2018, there was · t tal of nowfall (see id.}. Defendant an 2.8 inch s • 3:00 a.m. Howe 0l1 1 March 8, 2018 (see NY r th . l.ibert s that trace precipitation cm1 inu · D . # 14 to Mar h 44 . cal Climatological. Data Hourl Observations from the tation at irport provided herein b d fendan · ho until ark tbal on March 7 018 from 2 : J 2018 at 23 :51 the "Precip. Tota] ,(in)' is listed as 0.0 (see id.). c rding o hich shows trace precipitati.on on March 7; 2018 from 20:51 to 21 :51, the stonn c a d at 21 :51 or 9:51 p.m. on arch 7 2018 (see id.) .. Th note of issue was filed on January 14, 2020 ( ee NY CEF Doc.# 2 ). 4 [* 4] 4 of 8 INDEX NO. 510381/2018 FILED: KINGS COUNTY CLERK 09/18/2020 02:43 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 09/18/2020 D'i c11 ion Sunmm.ry Ju,,lg111e11t ~-[T]h proponent of a summary judgm nt motion must m sho mg of ny matenal issues f fact' (Stonehill Banko/ the W., 28 . . . d 439 68 Hospital, 68 t ndering umcient ntitlem n o judgment as a matter ,of ta demonstrate absence o a pnm .E.3d 68 [2016] acie idence to apital kfgmt. LLC v. iting Alvare- . Pro.1J€cf Y.2d l20 501 N.E.2d 572 [1 86]). FaHure to mak such a showing requires deni I of the motion regard]ess ofth suffi i n ofth opposing papers (see ,hiara v. Town o/New astle, l2 A.D.3d 111 2 . : .3d 132 Vega v. Restani Cons.I. · orp., 18 • 2d 240 [20]2]· see also Lee . 96,5 .Y.3d 49 rassau Health Care orp. 162 A.D.Jd 628 78 r2 Dept, 2015], citin .Y . . d 239 2 Dept., 20I 1), One a m ving part has made prima facie show'ng of its ent'tlement t summary judgment th burden shifts to th opposing party to pr duce e id ntiary pr fin admi ib e form su 1cient to stablish the existenc, of mat rial issues o fact whi h require a trial of th . a ion (see FairJane Fin. Co,p. v. Longspcn,gh. 144 A D.3d 858 41 Dept., 2016], citing Alv rez v. Prospect Hospital, 68 v. e, Holland . Am., Inc. , 23 .Y.Jd 41 11 .Y. . 3d 284 [2 ,Y .2d 320, supra; se also Hoover E.3d 693 [2ot4]). Storm in Progr ·s R11le Defi.ndant cont nds that h i entitl d to summ .. judgm nt as he had no dut to r medy a dangerous c ndition du . to the to·nn in Pr grcss Rul e. 'Pursuant to · dministrad c Co e ction 16- ] 23(a). o n rs o a u mg prop rtjes ha - four hou fr m the tim the pr, iphation ceases, e eluding the houts betw n 9:00 p.m. and 7:00 5 [* 5] 5 of 8 INDEX NO. 510381/2018 FILED: KINGS COUNTY CLERK 09/18/2020 02:43 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 09/18/2020 a.m., t cl ar ice and snow from the sidewalk; ( chron v. Jean's Fine Wine & . pirtt Inc. l ]4 A.D.3d 659~979 N.Y.S.2d 684 2 D p ., 2014] citing N.Y.C. Adm ini tr ti 1, -l23[a]). ~Under the so-called t ,rm in progress' rule a property o 1 hid no and i r, rn r i J ponsib e for accid nts o urring as a r ult of the aocumulation o no on hs premises until an. a eq-ua iod of time has passa:I foUo ing th tfon f the :torm to allow the ot ner an opportunity to ameliorate th hazard ce by th storm" (Bryant v. Retail Prop. Tr. ~- A.D. - d •·t 2020 au d .Y. Slip Op. 04 725 [2 ept.t 2020], quoting Marchese v. Skenderi, 51 A.D.3d 642 856 N.Y.S.2d 680 [2 D pt. 1 2008] . , n a modon for summary judgm n the question of whether areas nab I fm has lap: d may be decided as a matter of ai b th as ... Ho e er~ [i]f the stonn has pas , d and preeipitru:ion has tailed ff lo uch of th an ourt. based upon th circum tan t n that there i no longer an ap reciab accumulat" on then the ration -1 for continu d delay abates and commonsens ould dictate hat the rule not b appli (internal citations and quotation marks omitt <i]' ( asey-Bernstein v. Leach & Powers, LL i 70 A.D.3d 651, 95 .Y.S.3d 314 [2 D pt., 2019]). H 11c defendant failed to meet hi burd n as his own climatological dat . tha th lorm ceased at '9:5 J p.m. on Mar h 7 2020. urthermore the testjmon labr h d that defendants wife ho led and salted the dri wa at 1 J :00 p.m. on Mar h 7 2020. t best, Mrs. Friedman t timon thm the precipitation continu d ft l l :0 p.m. would ere.ate a question of fact. This ourt notes that at oral argum nt d f. ntlant did not dispute that precipitation s op ed by 10:00 p.m. 6 [* 6] 6 of 8 INDEX NO. 510381/2018 FILED: KINGS COUNTY CLERK 09/18/2020 02:43 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 09/18/2020 Premise Liability Defendant further contends that h . is llOl liabl ash had no actual or constructive. notice of the accumulation of ic on the sidewalk prior to plaintiffs fal]. ~~A property ovvner is charged with the duty .of maintai.ning it pr mis s in a reasonably safe condition' (Stanley v. New York lty Hous. Attth. 1 3 Dept., 2020]. citing Basso v. ~Willer, 40 .D.3d 564 121 . .2d 233 3 6 NY. .2d 564 [1976)). ~~To demonstrate entidemem to summary judgm nt an ov,m r that it maintained the premis in a r asonab] real property must estabr sh condif o,n and that it did not create a a dangerous or defe tive condition n h p,roperty or ha ith r ctual or constructi e condition for a uffi · nt l ngth oftime o J med it notice of a dangerous or d fl (Reed v. 64 JWB, LLC 171 .Y..S.3d 612 [2 .D. d 122 mnor .Y.3d 902 1 7 .. 3d 78 [20201). · control of real property will be h ld Uabl for an a id nt in · ol ing now and ice on its ndition that , u . d th accident or had la qu z . Pro Park, Inc., l 73 A.D.3d aotual or constru.cti e notic of i 1246 104 .Y..3d 674 [2 D pt 2019 iting Benn u v. Alleynet 163 A.D.3d 754, 81 .Y.S.3d 504 [2 Dept. 2018]). 'To con titut visible and apparent and it mu t on true iv notic , a defect must be ist for a sum i to permit defendant's employees to dis 11t l ngth of time prior to the accident v r nd r m dy it' (Johnson Eighth St. Apartments Hous. Dev. Fund orp. 185 A.D.3d 671, 124 V. 101 m]05 S, .Y.. 3d 852 (2 Dept., 2020], quoting Gordon v. American Museum of Natural History, 67 N.Y .2d 836. 501 ..Y.S .2d 646 [1986]). 7 [* 7] 7 of 8 INDEX NO. 510381/2018 FILED: KINGS COUNTY CLERK 09/18/2020 02:43 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 09/18/2020 In the inst nt case, d fondant ailed t meet bis burden and estabH 'h en fit merrt to summary judgment as am tter of ]av . Here it is undi puted ha defendant est bhshed through the depo ition testimony of himself nd his wife. that they did constru fve notic of the i arch 8 2018. Ho on th ll t have ctual or idewa11:: prior to plaintiff's accid nt at 7:00 a.m. on ver the evid nee show hat th idewaik in front of the p mises was de r of snow and ice, xcept for the tir tracks fr m the driveway area to th street, ,,,.,bich is · here plaintiff slipped. Defendant failed to tablish ,hat he or anoth r p rson using th driv,ew of the pr mis s d"d not. cause and _reat.e th k condition. ·urther, defendant failed t estabii ·h that his wife di 1ot exao rbate th _aUeged condition through her failure to dear the -sno from th dri ewa portion of the premise . Concl ltsion A cordingly, the d _fendant motion · or summ ry judgment is d nied. Th foregoing onstitutes th d cision and ord r of tbi Court. TER: ,. .r· , ' • . ..,,, c·' r. [* 8] 8 of 8

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.