Opinion
208941.
Decided September 29, 2005.
Pelagalli, Weiner Rench, LLP, Attorneys For Plaintiff.
Brennan, Rehfuss Liquori, P.C., Attorneys For Defendant.
Defendant seeks summary judgment, dismissing plaintiffs complaint in its entirety. Plaintiff opposes the motion.
Plaintiff alleges that she slipped and fell on ice on a sidewalk outside her apartment. The incident occurred on November 30, 2002 at approximately 5:00 a.m. Plaintiff's apartment is located at the Matin Luther King Apartments at 98 Eddy's Lane in the City of Troy. The apartments are owned and operated by defendant.
There are two sidewalk paths which lead to plaintiff's apartment. One leads to her front door and the other leads to her back door. On November 29, 2002, plaintiff between 7:00 p.m. and 7:15 p.m., arrived at her apartment and walked on the sidewalk to her back door. Plaintiff left her apartment, that evening, at approximately 10:00 p.m. and again walked along the sidewalk from her back door. Plaintiff arrived home between 4:45 and 5:00 a.m. on November 30, 2002. At that time, she walked to her front door and slipped and fell on the sidewalk path. The parties have different interpretations concerning what plaintiff saw, in terms of ice and snow accumulation, on her various travails across the two sidewalks.
Defendant produced documentary evidence that it had salted and removed snow throughout the day on November 29, 2002. Defendant also produced the deposition transcripts of several of its employees. None of the employees were aware of any complaints about pooling water or snow and ice accumulations on any apartment sidewalks. Defendant also relies on plaintiff's testimony that the ice she fell on was neither dirty nor bumpy. Defendant cites these facts, and the predawn accident time, as proof that defendant: (1) did not have a reasonable amount of time to discover and remedy the alleged dangerous condition; and (2) that the alleged dangerous condition was not readily visible or apparent at the time of the accident.
Defendant also disputes plaintiffs claim that poor lighting contributed to the accident. Through employee deposition testimony, they contend that a functioning floodlight was in place on plaintiffs apartment at the time of the accident.
The Court does note that defendant offered no submissions, in its original motion papers, addressing plaintiffs contention that defendant had created the alleged dangerous condition.
Plaintiff responded with several affidavits. In her own affidavit, plaintiff states that she took the rear door sidewalk route at 7:00 p.m. and at 10:00 p.m. on November 29th, 2002. She further states that there were no outside lights turned on in the area where she fell, and absolutely no artificial lighting cast upon the area. Plaintiff claims that the lack of lighting made it difficult for her to see the ice which had accumulated on the sidewalk. She further claims that there was snow on the ground, parking lot and sidewalks of the apartment building as of 7:00 p.m. on November 29, 2002.
In another affidavit, plaintiffs neighbor, Denise Murray, stated that she was outside her apartment sometime between 5:00 A.M. and 6:00 A.M. on November 30, 2002. Murray stated that at that time she observed ice on the sidewalk, and snow piled on the grass alongside the sidewalk. Ms. Murray's apartment is directly across from the sidewalk where plaintiff fell.
Plaintiff provided an expert affidavit from meteorologist, Howard Altschule. Mr. Altschule opined that the closest point in time in which the patch of ice, on which plaintiff fell, was formed would have been before 6:30 p.m. on November 29, 2002. He further opined that it was likely that the ice had existed for a considerable period of time prior to 6:30 p.m., because temperatures were consistently above freezing from 6:30 p.m. on November 29, 2002 through 5:00 a.m. on November 30". Mr. Altschule based his opinions on the following documents: 1) National Weather Service hourly surface weather observations for November 24th-November 30th, 2002; 2) Cooperative observer station reports for the November 24th-November 30th, 2002; and 3) the publication "Local Climatological Data: for Albany, New York in November, 2002.
The documents were based on weather stations located in Troy, Albany (approximately 6 miles from the accident site; West Sand Lake (approximately 7 miles from the accident site), and Grafton (approximately 12 miles from the accident site).
Plaintiff also provides the deposition testimony of Allen McBee. Mr. McBee was walking with plaintiff at the time of the fall. Additionally, Mr. McBee had dropped plaintiff off at her apartment at 7:00 p.m. on November 29th, 2002. At that time, he observed that the apartment's parking lot, and the roads, were covered with something he described as "like slush".
Plaintiff cites all of her proffered evidence in support of the conclusion that the ice upon which she fell had to exist for at least 10.5 hours prior to her fall. She further claims that she has offered sufficient evidence on the issue of whether defendant created the alleged dangerous condition. Specifically, on the creation issue, plaintiff claims that the evidence establishes that defendant piled snow in areas directly adjacent to the sidewalks and that the construction of the sidewalk would permit moisture to pool and freeze on the sidewalk.
Defendant's reply papers emphasize the timing of plaintiff's slip and fall. Specifically, defendant notes that the fall took place before sunrise and reasonable working hours. Defendant also posits, based on plaintiff's own testimony, that the dangerous condition did not exist as of 10 p.m. on November 29, 2002. Thus, defendant argues, defendant as a municipal business entity could not have known about a condition that was created between 10:00 p.m. and 5:30 a.m. Defendant cites these arguments in support of its conclusion that it had no notice of the alleged dangerous condition. Defendant also argues, for the first time in its reply papers, that plaintiff has failed to raise an issue of fact that defendant created a dangerous condition. Lastly, defendant contends that plaintiff's expert opinion lacks foundation and therefore should not be considered by the Court on the motion.
Discussion
For defendant to prevail on this summary judgment motion, it is required to establish as a matter of law that [it] maintained the property in question in a reasonably safe condition and that [it] neither created the allegedly dangerous condition existing thereon nor had actual or constructive notice thereof" ( Richardson v Rotterdam Sq. Mall, 289 AD2d 679).
As defendant did not address the issue of whether it created the dangerous condition in its initial motion papers, its motion for summary judgment must fail. Quite simply, defendant failed, in its moving papers, to rule out the existence of issues of material fact ( see, Ritt v Lenox Hill Hospital, 182 AD2d 560). Because the issue was not even raised until defendant's reply papers, the Court may not even consider defendant's proof in this regard ( see, Schissler v Athens Associates, 19 AD3d 379).
In any event, defendant's proof merely consisted of an attempt, via reply papers, to hoist the summary judgment burden upon plaintiff. This attempt is unavailing, as plaintiff had neither the obligation nor the opportunity to respond to an issue which had not been raised ( see, Ritt v Lenox Hill Hospital, supra).
Defendant did meet its burden of demonstrating entitlement to summary judgment on the issue of constructive notice. Its submissions in the form of employee testimony and documentary evidence of snow and ice removal, as well as the absence of any evidence of complaints of ice or snow accumulation, are sufficient to meet defendant's initial burden establishing as a matter of law that it lacked constructive notice of the alleged dangerous condition ( see generally, Wimbush v City of Albany, 285 AD2d 706; Wright v Rite-Aid of NY, 249 AD2d 931).
Plaintiff made no meaningful attempt to argue that defendant had actual notice of the allegedly dangerous condition.
Turning to plaintiff's proof, the Court finds that defendant does not dispute, at this time, plaintiff's testimony that the sidewalk contained ice as of 5:00 a.m. Plaintiff's testimony on that issue was buttressed by the affidavit of Denise Murrary. Additionally, the affidavit of Mr. Altschule, though speculative as to his freeze/thaw theory and the precise conditions at the apartment, did point out that two inches of snow fell on November 29th and that no precipitation fell for approximately thirteen hours before her fall. Altschule also established that the temperature was above freezing from November 29th at 6:30 p.m. through the time of plaintiff's fall. In the Court's opinion, these unchallenged submissions are sufficient to create questions of fact regarding whether defendant had constructive notice of the icy conditions and ample time to take corrective action ( see, Uhlinger v Gloversville Enlarged School District , 19 AD3d 780; Polgar v Syracuse Univ. , 255 AD2d 780 ).
The Court has considered and rejected defendant's theory that some lesser standard of duty is owed by municipal agencies to maintain their property during predawn hours. The Court finds no support for this proposition in the relevant case law.
Lastly, the parties' divergent descriptions of the lighting conditions should also be resolved by the trier of fact.
Accordingly it is
ORDERED that defendant's motion for summary judgment is hereby denied.
This shall constitute the Decision and Order of the Court. All papers are returned to the attorneys for the plaintiff, who are directed to enter this Decision/Order without notice and to serve defendant's counsel with a copy of this Decision/Order with notice of entry.