Opinion
12149 Index No. 22599/16 Case No. 2019-3699
10-22-2020
Mary GIRON, Plaintiff-Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Defendant-Respondent, The City of New York, Defendant.
Hasapidis Law Offices, Scarsdale (Annette G. Hasapidis of counsel), for appellant. Herzfeld & Rubin, P.C., New York (Sharyn Rootenberg of counsel), for respondent.
Hasapidis Law Offices, Scarsdale (Annette G. Hasapidis of counsel), for appellant.
Herzfeld & Rubin, P.C., New York (Sharyn Rootenberg of counsel), for respondent.
Friedman, J.P., Kern, Scarpulla, Shulman, JJ.
Order, Supreme Court, Bronx County (Llinet M. Rosado, J.), entered April 24, 2019, which granted defendant NYCHA's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The court properly granted defendant's motion based on the "storm in progress" defense (see Powell v. MLG Hillside Assoc., 290 A.D.2d 345, 737 N.Y.S.2d 27 [1st Dept. 2002] ; Pippo v. City of New York, 43 A.D.3d 303, 304, 842 N.Y.S.2d 367 [1st Dept. 2007] ). Defendant established that a storm was in progress at the time of plaintiff's accident by submitting, among other things: an expert affidavit from a meteorologist who, based on review of climatological data, concluded that "freezing rain" began shortly before and continued through the time of plaintiff's accident and, an affidavit from the supervisor of caretakers describing the effects of an "ice storm" on plaintiff's housing complex. Plaintiff's contention that defendant failed to meet its prima facie burden because it submitted "conflicting evidence" is unpreserved ( Howard Rosengarten, P.C. v. Hott, 49 A.D.3d 328, 329, 854 N.Y.S.2d 687 [1st Dept. 2008] ) and, in any event, unavailing.
In opposition, plaintiff failed to raise a triable issue of fact. None of plaintiffs' proffered evidence—including her conclusory deposition testimony that it was not raining or snowing at the time of her accident and her reference to hourly precipitation reports showing trace amounts of precipitation two hours before the accident – rebutted the actual temperature and precipitation readings documented in the other climatological records, or the affidavit of the supervisor of caretakers showing that an "ice storm" was occurring in the area of the complex in the hours before and during plaintiff's accident ( Lowenstern v. Sherman Sq. Realty Corp., 165 A.D.3d 432, 84 N.Y.S.3d 151 [1st Dept. 2018], lv denied 33 N.Y.3d 906, 103 N.Y.S.3d 358, 127 N.E.3d 316 [2019] ; Prince v. New York City Hous. Auth., 302 A.D.2d 285, 756 N.Y.S.2d 158 [1st Dept. 2003] ).
Plaintiff's contention that an issue of fact exists as to whether NYCHA's snow and ice removal work created or exacerbated a dangerous condition (see Pipero v. New York City Tr. Auth., 69 A.D.3d 493, 894 N.Y.S.2d 39 [1st Dept. 2010] ) is directly refuted by her own testimony that the stairway had not been shoveled, sanded or salted at the time of her accident.