Opinion
Index No.: 34767/09 Motion Cal. No.: 22 Motion Seq. No.: 3
06-12-2012
Margarita Mateo, Plaintiff, v. Nicholas Xing Hi Yuen, Defendant.
Short Form Order
Present: HONORABLE BERNICE D. SIEGAL
Justice
The following papers numbered 1 to12 read on this motion for an order pursuant to CPLR 3211 and 3212, dismissing plaintiff's complaint against the defendant Nicholas Xing Hi Yuen, on the grounds that there is no triable issue of fact as to those defendants.
+-----------------------------------------------+ ¦ ¦PAPERS ¦ ¦ ¦ ¦ ¦ ¦NUMBERED¦ +--------------------------------------+--------¦ ¦Notice of Motion - Affidavits-Exhibits¦1 - 4 ¦ +--------------------------------------+--------¦ ¦Affirmation In Opposition ¦5 - 9 ¦ +--------------------------------------+--------¦ ¦Reply ¦10 - 12 ¦ +-----------------------------------------------+
Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:
Defendant, Nicholas Xing Hi Yuen ("Yuen") moves for an order pursuant to CPLR 3211 and 3212, dismissing plaintiff's complaint against defendant Yuen as there are no triable issues of fact. Facts
Plaintiff, Margarita Mateo ("Mateo") testified at her deposition that on December 24, 2008, she was exiting her building at 18-12 Centre Street, Ridgewood, New York ("Subject Premises") to go to work when she slipped and fell as she stepped off the platform and onto the top step. Plaintiff testified that when she opened the door to exit the building she noticed the steps were "wet." Plaintiff also testified that when she arrived home on the night before the accident she noticed that the steps had been "salted" and that the steps were wet but that there was no ice or snow on the steps.
Defendant's expert Brett Zweiback ("Zweiback") a meteorologist averred in his affidavit that there was no precipitation reported on December 22, 2008 or December 23, 2008; that on December 24, 2008, the date of the accident, rain, mixed with sleet and/or freezing rain began to fall at approximately 3:30AM.; and that the temperature was 31 degrees at Midnight on the date of the accident and the temperature remained the same into the early hours of the morning. Zweiback concluded that at the time of the accident there was light rain, mixed with sleet or freezing rain, which was conducive to icy ground surfaces.
Plaintiff's expert, Stanley Fein ("Fein"), a licensed engineer, contends that good and accepted engineering safety practice requires that steps shall have a .5 coefficient of friction. Fein states that he tested the steps and found that the coefficient of friction on the top step, where the plaintiff fell, to be .42, "in the dry condition. Fein also stated in his affidavit that the handrail did not meet the Good and Accepted engineering safety practice and Sections §§27-376 and 27-375(e)(2) of the New York City Building Construction Code.
For the reasons set forth below, defendant's motion pursuant to CPLR §§3211 and 3212 to dismiss the plaintiff's complaint is denied as there are issues of fact for trial.
Discussion
Summary Judgment
CPLR §3212(b) provides, in relevant part, that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."
Summary judgment is a drastic measure "that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues.'" (Doize v Holiday Inn Ronkonkoma, 6 AD3d 573, 574 [2d Dept 2004], quoting Andre v Pomeroy, 35 NY2d 361, 364 [1974]); see also Pearson v Dix McBride, LLC, 63 AD3d 895, 895 [2nd Dept 2009]; Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]). The role of the court in considering a motion for summary judgment is not to resolve "issues of fact or matters of credibility," but rather, to determine whether such issues exist (Pearson, 63 AD3d at 895; Kolivas v Kirchoff, 14 AD3d 493, 493 [2nd Dept 2005].) Further, "in determining a motion for summary judgment, facts alleged by the nonmoving party and inferences which may be drawn from them must be accepted as true" (Doize, 6 AD3d at 574). The party moving for summary judgment must submit "evidentiary proof in admissible form," to show that there are no material issues of fact to be decided by the court (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If a moving party meets its burden for a summary judgment, the opposing party can defeat the judgment if by "show[ing] facts sufficient to require a trial of any issue of fact" (id.)
Defendant's Threshold Burden
A defendant in a slip-and-fall case is entitled to summary judgment if it makes 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." (Mantzoutsos v 150 Street Produce Corp., 76 AD3d 549 [2d Dept 2006].) Only if the "defendant has satisfied [this] threshold burden will the court examine the sufficiency of the plaintiff's opposition" (Doherty v Smithtown Cent. School Dist., 49 AD3d 801 (2d Dept 2008].)
Based on the within fact pattern, the defendant had to establish, prima facie, that it neither created the snow and ice condition nor had actual or constructive notice of the condition. (Meyers v Big Six Towers, Inc., 85 A.D.3d 877 [2nd Dept 2011]; see also Persaud v S & K Green Groceries, Inc., 72 A.D.3d 778 [2nd Dept 2010].) In Meyers, the court concluded that defendant's met their burden by establishing that there was a storm in progress when the plaintiff fell. (Id.) Similarly, in the within action the defendants established by the expert affidavit of Zweiback that there was rain and mixed precipitation falling at the time plaintiff fell. Furthermore, plaintiff's own testimony established that the steps, on the night before the accident was clear of snow and that there was the steps had been "salted."
Storm in Progress
"Under the 'storm in progress' rule, a property owner will not be held liable for accidents occurring as a result of the accumulation of snow or ice on its premises until an adequate period of time has passed following the cessation of the storm, within which time the owner has the opportunity to ameliorate the hazards caused by the storm." (Smith v. Christ's First Presbyterian Church of Hempstead, 93 A.D.3d 839 [2nd Dept March 27, 2012]; see also Ali v. Village of Pleasantville, 2012 WL 1521851 [2nd Dept May 1, 2012].) Zweiback, a meteorologist, stated that at the time of the accident there was light rain, mixed with sleet or freezing rain. Zweiback concluded that based on his observations he could state with a reasonable degree of meteorological certainty that the precipitation that fell at approximately 4:35AM as light rain and mixed precipitation was conducive to icy ground surfaces. Defendant contends that these conditions amount to a "storm in progress." Furthermore, plaintiff's own deposition testimony indicated that she observed salt on the steps when she arrived home the night before the accident. In opposition, plaintiff's counsel asserts that there was merely .01 inches of precipitation that fell at Laguardia Airport for the time Zweiback is referring to. Plaintiff, states in her affidavit that there was no precipitation at the time of the accident. However, plaintiff fails to contend that she was aware of the weather conditions for the hours leading up to her fall. Accordingly, the court must rely on the lone expert who testified that it was his expert opinion that precipitation fell in the hours leading up to the accident and that precipitation caused the icy conditions. Accordingly, defendant established its prima facie entitlement to summary judgment in that it neither created the condition nor had actual or constructive notice of the condition.
Expert Witness Disclosure
In opposition, plaintiff relies upon the affidavit of Stanley Fein, a licensed engineer. Initially, defendant contends that Fein's affidavit cannot be considered in determining the motion since Fein was not identified by the plaintiff until after the note of issue and certificate of readiness were filed attesting to the completion of discovery, and the plaintiff has offered no valid excuse for the delay in identifying the expert. (Wartski v C.W. Post Campus of Long Is. Univ., 63 A.D.3d 916 [2nd Dept 2009].) However, CPLR §3101(d)(1)(i) does not require a party to respond to a demand for expert witness information 'at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute,' unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party."(Hernandez-Vega v. Zwanger-Pesiri Radiology Group, 39 A.D.3d 710 [2nd Dept 2007].) The court will consider Fein's affidavit as there was no evidence submitted by the defendant that the plaintiff's failure to disclose was intentional or willful and there was no showing of prejudice to the defendant.
Coefficient of Friction
In opposition, plaintiff contends that there are issues of fact regarding the construction and maintenance of the top step where the plaintiff slipped and fell. Plaintiff's expert, Fein, contends that good and accepted engineering safety practice requires that steps shall have a .5 coefficient of friction. Fein states that he tested the steps and found that the coefficient of friction on the top step, where the plaintiff fell, to be .42, "in the dry condition. Mateo, in her affidavit claims that she slipped due to wet and icy condition on the steps. However, Fein failed to identify the basis for the 0.5 coefficient-of-friction value he utilized as a standard, nor did he demonstrate that, at the time he measured the coefficient, the top step was in the same condition as it was on the date of the accident or a substantially similar condition. (Rizzo v. Sherwin-Williams Co, 49 A.D.3d 847 [2nd Dept 2010]; Friedman v. BHL Realty Corp., 83 A.D.3d 510 [1st Dept 2011]; Friedman v. BHL Realty Corp., 83 A.D.3d 510 [1st Dept 2011] [holding that defendant's expert's reliance on the coefficient of friction of stairs when dry was insufficient to meet defendant's prima facie burden, noting that defendant's expert conceded that there is "no available test to measure the friction of wet surfaces"].) Accordingly, Fein's contention that the top step did not meet safety standards is without merit.
Handrail Height
Plaintiff relies on New York City Building Code.§ 27-376 which provides that "[e]xterior stairs may be used as exits in lieu of interior stairs provided they comply with all of the requirements for interior stairs." NYCBC §27-375(f)(2) sets for the requirements for "interior stairs." Specifically, NYCBC §27-375(f)(2) provides that "[t]he height of handrails above the nosing of treads shall be not more than thirty-four inches nor less than thirty inches." In the within action, defendant's own expert, Jeffrey J. Schwaljie, stated in his affidavit that the left side handrail was between 27" and 28". Mateo states in her affidavit that as she stepped down she "reached for the handrail with (her) left hand, but did not reach the handrail in time to prevent (her) fall."
Accordingly, the evidence submitted by the plaintiff raised issues of fact as to whether the defendant violated the Administrative Code of the City of New York § 27-375(f) by not providing proper handrails and, if so, whether the lack of proper handrails was a proximate cause of the plaintiff's accident.
Conclusion
For the reasons set forth above, defendant's motion pursuant to CPLR §§3211 and 3212 to dismiss the plaintiff's complaint is denied as there are issues of fact for trial.
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Bernice D. Siegal, J. S. C.