Cruz v Guerrero
Annotate this CaseDecided on May 20, 2020
Supreme Court, Bronx County
Angela Cruz, Plaintiff,
against
Violetta Guerrero and Onesimo Guerrero, Defendants.
21517/2015
Plaintiff is represented by Nonna Shikh, Esq., LAW OFFICES OF NONNA SHIKH, 400 E Fordham Rd, Bronx, NY 10458.
Defendants are represented by Edward J Savidge, Esq., Rankin Savidge PLLC, 1527 Franklin Ave Ste 100, Mineola, NY 11501.
Llinet M. Rosado, J.
The defendants move for an order granting summary judgement in their favor and dismissing the plaintiff's complaint, pursuant to CPLR 3212.
The within personal injury action arises out of an alleged incident that is alleged to have occurred on the sidewalk adjacent to property owned by the defendants and located at 3246 Corlear Avenue (the premises), Bronx, New York. On March 9, 2015, the plaintiff alleges that, as she was walking by the premises, she slipped and fell on a patch of black ice on the sidewalk. The plaintiff alleges that she sustained serious bodily injuries due to the slip and fall.
The defendants contend that they neither created nor had notice of the alleged condition, and there are no triable issues of facts in this case and defendants are therefore, exempt from liability. In support of their motion, defendants submit copies of the pleadings; the depositions of the plaintiff, Violetta Guerrero and Lush Mitaj; the certified local climatological data records of March 2015 daily summary prepared by the United States Department of Commerce (the "climatological data"); and a certificate of occupancy. The plaintiff submits an attorney's affirmation in opposition, and the defendant submits an attorney's affirmation in reply.
At the plaintiff's deposition, the plaintiff testified that she slipped and fell on a patch of black ice in a path on the sidewalk in front of the premises. She did not see the ice that caused her accident before she fell.
Ms. Guerrero testified that she is the owner of the premises and that the property is occupied for residential purposes only. According to the Certificate of Occupancy, it is a two-family home. Ms. Guerrero testified that she and her daughter use the premises on weekends.
Mr. Mitaj testified that for over ten years, he has had an agreement with the defendants whereby he removes snow from the front of the premises after a storm. Mr. Mitaj testified that he used a shovel or a blower to remove snow and that he applied salt to the ground afterwards.
Defendants had no actual or constructive knowledge of an icy condition on the sidewalk. [*2]Plaintiff testified that she had not notified defendants of the condition, and Ms. Guerrero testified that she did not have notice from any other person. In addition, plaintiff's testimony that she did not see the ice until after she fell demonstrates a lack of constructive notice. See Pena v City of New York, 161 AD3d 522 (1st Dept.2018).
The owner of real property abutting a sidewalk will be liable for a personal injury proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. However, the liability does not apply to one, two or three family premises, that are owner occupied and used for residential purposes. Administrative Code of the City of New York 7-210. By the submission of the Certificate of Occupancy and Ms. Guerrero's deposition testimony, defendant owners have established prima facie that pursuant to the statute, they are exempt from liability for plaintiff's injury.
For summary judgment to be granted, the moving party must make a prima-facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (Alvarez v Prospect Hosp., 68 NY2d 320. 324; 508 NYS2d 923, 501NE2d 572 [1986]). If the moving party produces the required evidence, the burden shifts to the nonmoving party "to establish the existence of material issues of fact which require a trial of the action." (Vega v Restani Constr. Corp., 18 NY3d 499, 503, 542 NYS2d 923, 501 NE2d 240, quoting Alvarez, 68 NY2d, at 324, 508 NYS 923, 501 NE2d 572)." Xiang Fu He v Troon Management, Inc., 34 NY3d 167 (2019).
Plaintiff's attorney argues that there is a question of fact as to whether defendants' snow removal efforts caused or created a patch of black ice on the sidewalk. Plaintiff's attorney posits that when Mr. Mitaj cleared a path in the sidewalk, he may have created the icy condition upon which plaintiff slipped.
Plaintiff's contention as to the cause of the condition is unsupported by any evidence such as a weather report, meteorological data, or an expert's affidavit. Simmons v Metropolitan Life Ins. Co., 84 NY2d 972 (1984). The attorney's speculation that the plaintiff's accident was due to the defendants' removal of snow from the sidewalk is insufficient to raise a triable issue of fact. Acheson v. Shepard, 27 AD3d 596 (2nd Dept. 2006). Plaintiff failed to submit evidence demonstrating a material issue of fact as to whether defendants caused or created the patch of black ice condition at issue. Cyril v Mueller, 104 AD3d 465 (1st Dept. 2013).
Accordingly, it is hereby
ORDERED, that the defendants' motion is granted; and it is further
ORDERED, that the case is dismissed; and it is further
ORDERED, that the defendants are directed to serve a copy of this order with notice of entry on the plaintiff within thirty (30) days from the date of entry.
This constitutes the decision and order of the court.
Dated: May 20, 2020
Hon. Lline t M. Rosado, JSC
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