Opinion
2014-02-25
Delilah PEREZ, Plaintiff–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Respondent.
The Berkman Law Office, LLC, Brooklyn (Robert J. Tolchin of counsel), for appellant. Cullen and Dykman LLP, New York (Joseph C. Fegan of counsel), for respondent.
The Berkman Law Office, LLC, Brooklyn (Robert J. Tolchin of counsel), for appellant. Cullen and Dykman LLP, New York (Joseph C. Fegan of counsel), for respondent.
SWEENY, J.P., ANDRIAS, MOSKOWITZ, DeGRASSE, JJ.
Order, Supreme Court, New York County (Shlomo Hagler, J.), entered October 18, 2012, which granted defendant New York City Housing Authority's (NYCHA) motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Defendant failed to meet its prima facie burden of demonstrating that it did not create the alleged condition.
In addition, NYCHA failed to demonstrate it lacked constructive notice of the alleged condition. In order to establish its lack of constructive notice of the complained-of condition, NYCHA was required to offer specific evidence as to its activities on the day of the accident, including when the area where plaintiff fell was last inspected, which it failed to do ( see Guerrero v. Duane Reade, Inc., 112 A.D.3d 496, 976 N.Y.S.2d 385 [1st Dept. 2013] ). Furthermore, plaintiff testified that the snow and ice piled upon the curb was hard and a “little bit black,” which is sufficient to infer that the condition had been there a sufficient amount of time for its employees to discover and remedy it ( see Wright v. Emigrant Sav. Bank, 112 A.D.3d 401, 401–402, 976 N.Y.S.2d 47 [1st Dept. 2013] ).
The report of NYCHA's expert meteorologist was speculative, because it failed to take into account plaintiff's testimony that the snow and ice had been on the sidewalk for approximately four days after NYCHA employees had piled it up onto the curb, and only addressed the general conditions in the vicinity rather than the origin of the specific ice and snow condition on which plaintiff alleges she fell ( see Massey v. Newburgh W. Realty, Inc., 84 A.D.3d 564, 566, 923 N.Y.S.2d 81 [1st Dept. 2011]; Reagan v. Hartsdale Tenants Corp., 27 A.D.3d 716, 718, 813 N.Y.S.2d 153 [2d Dept. 2006] ).
Since NYCHA failed to satisfy its prima facie burden of establishing its entitlement to summary judgment, plaintiff's opposition papers need not be considered ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).