Opinion
INDEX NO. 53742/11
01-08-2014
LUCRETIA ALEXANDRO, Plaintiff, v. ONE LARKIN, LLC, Defendant.
NYSCEF DOC. NO. 24 To commence the statutory time period of appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order with notice of entry, upon all parties. DECISION AND ORDER
Motion Seq. No. 001
DIBELLA, J.
The following papers have been read and considered on this motion by defendant for summary judgment dismissing the complaint: 1) Notice of Motion; Affirmation in Support of Patricia A. Mooney, Esq.; Exhibits A-D; 2) Affirmation in Opposition of F. Frank Vozza, Esq.; Affidavit of Howard Altschule; Exhibits A-B; and 3) Reply Affirmation of Patricia A. Mooney, Esq.
In this personal injury action, defendant moves for summary judgment dismissing the complaint, pursuant to CPLR 3212. Plaintiff opposes the motion. For the reasons set forth below, the motion is denied.
This is an action for personal injuries allegedly sustained by plaintiff on January 13, 2011 when she allegedly slipped and fell on a sheet of black ice in the parking lot of defendant. The alleged accident took place in the parking lot located at One Larkin Plaza in Yonkers, New York.
Plaintiff testified that it snowed the day before her alleged accident and that, on the date in question, it was not snowing and the weather was cold outside. She testified that, in order to gain access to the building where she worked, she walked through the parking lot where the accident took place the morning of her accident. Plaintiff also testified that, on her way into work in the morning of January 13, 2011, there was no snow on the ground in the parking lot where she fell, and it appeared to have already been shoveled. Plaintiff further testified that when she left work that day at approximately 4:00 PM and was crossing the parking lot, her right foot slipped on the ice, which caused her to fall.
Summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). However, it should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. Zuckerman v. City of New York, 49 NY2d 557, 560 (1980). "Moreover, the motion court should draw all reasonable inferences in favor of the nonmoving party in determining whether to grant summary judgment." F. Garofalo Elec. Co. v. New York Univ., 300 AD2d 186, 188 (1st Dep't 2002). In deciding such a motion, the court's role is "issue-finding, rather than issue-determination." Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957) (internal quotations omitted).
A real property owner will be held liable for injuries sustained in a slip and fall accident involving snow or ice on the property when the owner either created or contributed to the creation of the alleged dangerous condition or had actual or constructive notice of it, and a reasonable opportunity to remediate the condition but failed to do so. Feola v. City of New York, 102 AD3d 827, 827 (2d Dep't 2013); Williams v. KJAEL Corp., 40 AD3d 985 (2d Dep't 2007). "[A] defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it." Feola, 102 AD3d at 827. To constitute constructive notice, the defect must be visible and apparent and must exist for a specific period of time prior to the occurrence to permit the defendants' employees to discover and remedy it. Gordon v. Am. Museum of Natural History, 67 NY2d 836, 837 (1986). "To meet its initial burden on the issue of lack of constructive notice, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell." Feola, 102 AD3d at 828, quoting Birnbaum v. New York Racing Ass'n, Inc., 57 AD3d 598, 598-99 (2d Dep't 2008).
Defendant contends that the motion should be granted in its favor because there is no evidence that defendant created, exacerbated, or had notice of the ice condition alleged to have caused plaintiff's accident.
Plaintiff contends that issues of fact exist and defendant's motion should be denied. Plaintiff asserts that defendant has not demonstrated that it did not create or exacerbate the condition by its snow removal practices, nor did it demonstrate that it did not have actual or constructive notice, and did not submit evidence of the last time the area was inspected.
Defendant's motion is denied, as defendant failed to meet its prima facie burden of demonstrating its entitlement to judgment as a matter of law. Although the former property manager, Adam Inglis, was deposed and testified regarding the snow clearing procedures, he did not recall the snow removal operations that took place in January 2011 Further, defendant did not prove that it did not create or exacerbate the ice condition (see Lee v. Ilyasov, 95 AD3d 1205 [2d Dep't 2012]), that it did not have actual notice of the condition, and submitted no evidence as to when the area was last cleaned or inspected (see Feola, 102 AD3d at 828; Mignogna v. 7-Eleven, Inc., 76 AD3d 1054 [2d Dep't 2010]). Moreover, plaintiff has submitted the affidavit of a certified meteorologist who opined that most of the ice that was present at the time and place of the accident was pre-existing from earlier melt/freeze cycles and that the icy surfaces that existed were the result of storms and weather events that had occurred well before that day, as no precipitation had fallen for approximately 26 hours.
Accordingly, it is
ORDERED that defendant's motion for summary judgment is denied; and it is further
ORDERED that counsel are directed to appear for a settlement conference on March 12, 2014 at 9:30 AM in Courtroom 1600 of the Westchester County Courthouse, in White Plains, New York.
This is the Decision and Order of the Court. Dated: January 8, 2014
White Plains, New York
/s/_________
Hon. Robert DiBella, JSC