Opinion
14790 Index No. 159560/17 Case No. 2021–01751
12-07-2021
Virginia KOVEL, Plaintiff–Respondent, v. GLENWOOD MANAGEMENT CORP., et al., Defendants–Appellants, City of New York, Defendant.
Mauro Lilling Naparty LLP, Woodbury (Kathryn M. Beer of counsel), for appellants. Alpert, Slobin & Rubinstein, Garden City (Lisa M. Comeau of counsel), for respondent.
Mauro Lilling Naparty LLP, Woodbury (Kathryn M. Beer of counsel), for appellants.
Alpert, Slobin & Rubinstein, Garden City (Lisa M. Comeau of counsel), for respondent.
Acosta, P.J., Gische, Webber, Friedman, Kennedy, JJ.
Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered on or about April 6, 2020, which, to the extent appealed from as limited by the briefs, denied defendants Glenwood Management and Delbro Realty 1920, LLC's motion for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
The tree well border at issue in this action is not an inherently dangerous condition. To the extent that plaintiff claims the snow obscured her view of the tree well border, the storm in progress doctrine would preclude any recovery.
Plaintiff tripped and fell on a tree well border made of stone, that is adjacent to a building owned and operated by the appealing defendants (defendants). The accident occurred at night and during a snow fall. Plaintiff claims that the border is an inherently dangerous tripping hazard and that it was neither open nor obvious at the time of her fall. In its motion for summary judgment, defendant relied on the following evidence: plaintiff's description of the border as green, smooth and approximately three inches high, plaintiff's deposition testimony that at the time of her accident the border was in good condition and there was nothing wrong with it, testimony by Mr. Argotti, who was the building superintendent for 15 years, that there were no instances in which any individual tripped on the subject tree pit or its border or any of the 12 substantially similarly tree pits and borders adjacent to the property, and a record search by the New York City Department of Transportation finding no violations concerning the tree well or its border in the two years preceding the accident. This evidence was sufficient to prima facie establish that the tree well border did not constitute an inherently dangerous condition (see Vasquez v. Yonkers Racing Corp., 171 A.D.3d 418, 97 N.Y.S.3d 100 [1st Dept. 2019] ; Boyd v. New York City Hous. Auth., 105 A.D.3d 542, 964 N.Y.S.2d 10 [1st Dept. 2013], lv denied 22 N.Y.3d 855, 2013 WL 6065937 [2013] ). In opposition, plaintiff failed to raise an issue of fact. There is no claim that its design violates any building code provision or other applicable law or regulation (see Duffy v. 274 W. 19 LLC , 148 A.D.3d 553, 49 N.Y.S.3d 683 [1st Dept. 2017], lv denied 30 N.Y.3d 906, 2017 WL 5560466 [2017] ). Although plaintiff relied on an expert who concluded that the tree well border was inherently dangerous, he failed to include in his opinion any accepted industry wide standards of practices in the field regarding the construction and/or design of a tree well border from which defendants may have deviated (see Schmidt v. One N.Y. Plaza Co. LLC, 153 A.D.3d 427, 60 N.Y.S.3d 37 [1st Dept. 2017] ; Hotaling v. City of New York, 55 A.D.3d 396, 866 N.Y.S.2d 117 [1st Dept. 2008], affd 12 N.Y.3d 862, 881 N.Y.S.2d 655, 909 N.E.2d 577 [2009] ). Plaintiff's expert noted that the City of New York Department of Parks recommends that tree guards be 18 inches in height. This recommendation does not qualify as an accepted industry wide standard, and in any event, was intended to protect plants and trees, not people.
Plaintiff claims that snow covering the tree well made it harder to see. Plaintiff provides no response to the meteorologic evidence establishing that there was a storm in progress at the time she fell ( Ponce v. BLDG Orchard, LLC, 191 A.D.3d 613, 143 N.Y.S.3d 22 [1st Dept. 2021], 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, 2019 WL 2375920 [2019] ). Thus, there was no duty to remove the snow at the time of the accident. Where the accumulation of snow is the reason for liability, there is no analytical basis to limit the storm in progress doctrine to only icy conditions.