Opinion
107380/07.
Decided January 25, 2010.
In this action for damages for personal injuries, defendant Newburgh W. Realty, Inc. moves for an order pursuant to CPLR 3212, granting summary judgment dismissing the complaint. Plaintiff opposes the motion.
At her examination before trial, plaintiff Fantasia Massey testified as follows. In March 2007, plaintiff, a resident of New York City, was visiting her boyfriend, Michael Valerie (Valerie), in Newburgh, New York, where she alleges she slipped and fell on ice on the sidewalk adjacent to a convenience store owned by defendant. Plaintiff testified that she went to visit Valerie in Newburgh on Sunday, March 11, 2007, and from that day until the day of the alleged accident, March 14, 2007, she did not leave his apartment.
On March 14, 2007, at approximately 9:30 p.m., plaintiff and Valerie took a five minute drive to defendant's convenience store. Valerie parked the car in front of the store, plaintiff got out of the car, stepped onto the sidewalk, and after taking two or three steps, she slipped on ice and fell, fracturing her right ankle and leg. Plaintiff testified that her right ankle and leg were causing her pain, so she stayed on the ground for approximately 15 minutes. Valerie then carried her to the car and they returned to his apartment, where he called an ambulance, which brought her to the hospital.
According to plaintiff, the complaint incorrectly alleges that the accident occurred at 1:00 a.m. Plaintiff's testimony that the accident occurred at approximately 9:30 p.m., is consistent with the hospital records, indicating that the ambulance call was received at 10:11 p.m.
Plaintiff testified that she did not observe ice on the ground before she fell, but afterwards while remaining on the ground, she observed ice directly underneath and "all around" her, extending about five, six or seven feet on her left side, and two or three feet on her right side. In her affidavit, plaintiff describes the condition of the ice as "hard, dry, and approximately one-inch thick."
In support of its motion for summary judgment dismissing the complaint, defendant contends that it can demonstrate as a matter of law, through meteorological data and expert opinion, that the weather conditions would preclude the existence of snow or ice at the time of the accident. Defendant also contends that even assuming the presence of ice, plaintiff cannot establish that defendant had actual or constructive notice of such condition.
Defendant does not dispute that under Newburgh City ordinances, a property owner is required to keep the sidewalk abutting its property "free from snow and ice." See Code of the City of Newburgh § 263-8; Charter of the City of Newburgh § C9.30.
In opposing the motion, plaintiff argues that defendant fails to make a prima facie showing that no ice was present on the sidewalk at the time of her accident, and even if defendant has made such a showing, triable issues of fact exist as to the presence of such ice. Plaintiff also argues that defendant fails to make a prima facie showing that it lacked constructive notice of the subject ice, and even if it has, material issues of fact exist as to whether defendant had such notice.
"The proponent of a summary judgment motion 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." Winegrad v. New York University Medical Center, 64 NY2d 851,859 (1985); see also Santiago v Filstein , 35 AD3d 184 , 185-186 (1st Dept 2006). The burden then shifts to the party opposing the motion to present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact. See Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Mazurek v Metropolitan Museum of Art , 27 AD3d 227 , 228 (1st Dept 2006). If any doubt exists as to a triable fact, summary judgment must be denied. See Rotuba Extruders, Inc v Ceppos, 46 NY2d 223, 231 (1978); American Home Assur Co v. Amerford Int'l Corp, 200 AD2d 473 (1st Dept 1994).
Defendant's motion for summary judgment dismissing the complaint is denied. In light of plaintiff's sworn statements as to the size, thickness and dryness of the ice patch, Valerie's sworn and corroborating eye-witness statements, and the photograph clearly depicting a large, thick patch of ice, this court cannot determine as a matter of law that it would have been impossible for ice to be present on the sidewalk where plaintiff fell.
For the purposes of the instant motion, the court has considered the photograph of the accident site taken by Valerie. Valerie has provided a supplemental affidavit stating that he took the photograph at approximately 11:00 p.m. on March 14, 2007 with his cellular telephone, which he no longer possesses; he downloaded the photograph onto a computer and e-mailed it to plaintiff's attorneys; and no negatives exist, since the photograph was not taken with a camera containing film. Any issues as to the admissibility of the photograph are reserved for trial.
The meteorological data shows that during the several days prior to and on the day of the accident, the temperatures were above and well-above freezing. For example, on day of the accident, the temperature in Newburgh reached a high of 73 degrees at 2:45 p.m., and around the time of the accident from 8:45 p.m. to 9:45 p.m., the temperature ranged from 57 to 61 degrees. Notwithstanding these temperatures, defendant's expert does not conclude that the presence of ice would have been "impossible" under such circumstances, and does not address specifically whether an area of ice approximately seven feet by three feet, and one inch thick, could be present under such circumstances.
Defendant submits certified weather records for three different locations, and plaintiff submits weather records for a fourth location. Since the accident occurred in Newburgh, the court relies on the records for Stewart International Airport, which is located in Newburgh. Those records list the following high and low temperatures in Newburgh for the day of and the three days immediately preceding the accident: March 11, 30-45 degrees; March 12, 25-55 degrees; March 13, 37-61 degrees; and March 14, 37-73 degrees.
Rather, in his affidavit, the expert simply restates in narrative form the information contained in the certified weather records, as to the temperature and weather conditions on March 14, 2007, the day of the accident, and several days prior to the accident. Based on that information, the expert concludes that "at the time and location of the alleged accident (193 Broadway, Newburgh, New York: March 14, 2007; approximately 1:00 a.m.) the skies were mostly clear, the temperature was in the upper 30s, winds were calm and there was no snow or ice on the ground." The expert's affidavit, however, is not dispositive of the issue raised as to whether it would have been impossible for ice to be present at the time and location of plaintiff's accident, particularly in light of plaintiff's photograph which clearly shows the presence of a large patch of thick ice on the sidewalk adjacent to defendant's premises.
The expert bases his conclusion on the facts in the complaint which incorrectly states that the accident occurred at 1:00 a.m. For the purposes of the instant motion, the court will assume without deciding that the expert would have reached the same conclusion even if he had used the correct time of 9:30 p.m.
The Appellate Division First Department's decision in Perez v. Canale , 50 AD3d 437 (1st Dept 2008), is distinguishable on its facts. In that case defendants' expert meteorologist, relying on climatological data, "permissibly concluded that due to temperatures that well above freezing in the 12 hours prior to plaintiff's fall, it would have been impossible for there to have been a precipitation-related ice or snow accumulation in the vicinity of plaintiff's fall. Contrary to plaintiff's contention it was not speculative for defendants' qualified expert to conclude that the temperatures were at levels that would have caused melting on the days prior to and of the accident" [emphasis added]. Id. In contrast, here defendant's expert meteorologist merely concludes that there was no ice on the ground, without addressing the specific question raised as to whether it would have been impossible for a thick and large patch of ice to be present at the time of plaintiff's accident.
Also in Perez, the court discounted plaintiff's photographs, since they were taken the day after the accident and were not of the accident location. Here, however, according to the affidavits submitted by plaintiff and Valerie, the photograph is of the accident location, was taken two hours after the accident, and "fairly and accurately depicts the ice as it appeared at the time and location" of plaintiff's accident.
Thus, under the circumstances presented, plaintiff has produced sufficient evidentiary proof establishing the existence of triable issues of fact as to the presence of ice on the day of the accident.
Turning to the issue of constructive notice, defendant improperly places the burden on plaintiff to establish such notice. As the party moving for summary judgment, defendant bears the burden in the first instance to establish affirmatively the lack of constructive notice as a matter of law. See Manning v. Americold Logistics, LLC , 33 AD3d 427 (1st Dept 2006); Mitchell v. City of New York , 29 AD3d 372 (1st Dept 2006); Guiffrida v. Metro North Commuter Railroad Co, 279 AD2d 403 (1st Dept 2001). Defendant fails to satisfy such burden, as it has not submitted an affidavit, deposition testimony or any other competent proof from an employee of its convenience store. See e.g. Werny v. Roberts Plywood Co , 40 AD3d 977 (2nd Dept 2007) (defendant met its burden through the deposition testimony of its warehouse foreman that he did not see the ice patch on which plaintiff fell on the day before or the morning of the accident). The absence of such proof is notable in light of the large patch of ice depicted in plaintiff's photograph, which defendant has not controverted.
Moreover, as defendant does not dispute that it was statutorily obligated to keep the sidewalk abutting its property free from snow and ice, and given plaintiff's description of the thickness and length of the ice, as supported by plaintiff's photograph, an issue of fact exists as to whether defendant had constructive notice of the ice.
As noted above, defendant does not dispute that it had a statutory duty under Newburgh City ordinances, to keep the sidewalk abutting its property free from snow and ice. See Code of the City of Newburgh § 263-8; Charter of the City of Newburgh § C9.30.
Accordingly, it is hereby
ORDERED that defendant's motion for summary judgment is denied; and it is further
ORDERED that the parties are directed to appear for the pre-trial conference previously scheduled for February 4, 2010 at 2:30 p.m.