Opinion
Index EF008108/2018
10-19-2021
KATHERYNE CASTELLANOS SQUASH PLAINTIFF, v. MARIA SARLO and RAFAELLA CARDOSO DE ALMEIDA, DEFENDANTS. Motion Seq. Nos. 1, 2
Unpublished Opinion
MOTION DATE: 06/23/21
DECISION & ORDER
HON. MARIA S. VAZQUEZ-DOLES, J.S.C.
The following papers numbered 1-15 were read and considered on the summary judgment motion by defendant Maria Sarlo dismissing the complaint and all cross-claims as against her (Mot Seq. #1) and on the summary judgment motion by defendant Rafaella Cardoso De Almeida dismissing the complaint and all cross-claims as against her (Mot. Seq. #2):
Mot. Seq. #1
Notice of Motion/Affirmation (Gaztambide)/ Statement of Material Facts/ Exhibits A -I...................................................1-4
Affirmation in Opposition (DelDuco)/Response to Statement of Material Facts/ Exhibits 1-2................................................5-7
Affirmation in Reply (Gaztambide).................................................8
Mot. Seq. #2
Notice of Motion/Affirmation (Tollis)/Exhibits A - M..............................9-11
Affirmation in Opposition (DelDuco)/Response to Statement of Material Facts/ Exhibits 1-2..............................................12-14
Reply Affirmation (Tollis).......................................................15
This is an action for personal injuries allegedly sustained by plaintiff on December 24, 2016 at approximately 11:30 p.m. when she slipped and fell at a three-family home located at 250 King Street, Port Chester, New York which is a three-family house. Both defendants reside on the premises. Sarlo is the owner of the premises and Almeida is a tenant in one of the apartments located on the left side of the house. There is an exterior walkway that leads from the front of the house to Almeida's apartment. This action was commenced by the filing of a Summons and Complaint on July 31, 2018. Sarlo filed an Answer with cross-claims against the co-defendant on September 5, 2018. Almeida filed an Answer with cross-claims against the co-defendant on January 4, 2019.
Sarlo moves to dismiss the complaint and cross-claims against her. Liability for a dangerous condition on real property is generally predicated upon ownership, occupancy, control, or special use of the subject premises (see Elsayed v. Al Farha Corp., 132 A.D.3d 942, 943 [2d Dept 2015]; Ruggiero v. City Sch. Dist. of New Rochelle, 109 A.D.3d 894, 894-895 [2d Dept 2013]; Nappi v. Incorporated Vil. of Lynbrook, 19 A.D.3d 565, 566 [2d Dept 2015]). An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a "duty imposed by statute or assumed by contract or a course of conduct" (Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d 10 [2d Dept 2011]; see Byrd v. Brooklyn 46 Realty, LLC, 129 A.D.3d 882, 883 [2dDept2015]; Seawright v. Port Auth. of N.Y. & N.J., 90 A.D.3d 1017, 1017 [2d Dept 2011]). An owner or a party in possession or control of the premises will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its premises "only when it created the alleged dangerous condition or had actual or constructive notice of it" (Smith v. New York City Hous. Auth., 124 AD.3d 625, 625 [2d Dept 2015]; see Cruz v. Rampersad, 110 A.D.3d 669 [2d Dept 2013]; Cantwell v. Fox Hill Community Assn., Inc., 87 A.D.3d 1106 [2d Dept 2011]; Crosthwaite v. Acadia Realty Trust, 62 A.D.3d 823, 824 [2d Dept 2009]).
Thus, a defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing, inter alia, that it did not create the alleged hazardous condition (see Dhu v. New York City Hous. Auth., 119 A.D.3d 728, 729 [2d Dep 2014]; Cruz v. Rampersad, 110 A.D.3d 669, 670 [2d Dept 2013]; Santoliquido v. Roman Catholic Church of Holy Name of Jesus, 37 A.D.3d 815, 815-816 [2d Dept 2007]).
Here, Sarlo met this burden by submitting evidence sufficient to demonstrate that she did not create or have actual or constructive notice of the icy condition that allegedly caused the plaintiff to fall in the walkway (see Cantwell v. Fox Hill Comm. Assn., Inc., 87 A.D.3d 1106 [2d Dept 2011]; Robinson v. Trade Link Am., 39 A.D.3d 616 [2d Dept 2007]; Murphy v. 136 N Blvd. Assoc, 304 A.D.2d 540 [2d Dept 2003]; see e.g. Carpenter v. J. Giardino, LLC, 81 A.D.3d 1231 [3d Dept 2011]). In support of her motion, Sarlo submitted the affidavit of Steven Roberts, CCM, a certified consulting meteorologist. Mr. Roberts prepared a site-specific weather analysis report for the week leading up to and including the date of plaintiff s fall. Based upon the certified weather records and his expert analysis, Mr. Roberts found that no snow or ice precipitation fell on the day of the accident nor the six days leading up to the accident. It had rained on the day of plaintiff s fall for over seven hours and stopped around 1:30pm. The high temperature was near 45 F and the low temperature was near 35 F. At the end of the day, a trace of snow and ice cover remained on untreated and undisturbed areas as a result of events that occurred prior to December 18, 2016.
In opposition the plaintiff has failed to establish that Sarlo either created the complained of condition or had actual or constructive notice thereof. Significantly, the injured plaintiff stated that she did not notice any ice in the area where she fell prior to her fall and that she, along with her husband, her children, as well as DeAlmeida and her boyfriend, all traversed this very area only minutes before the accident occurred without incident. There is no evidence that anyone saw any alleged dangerous condition, including the plaintiff herself (Gordon v American Museum of Natural History, 67 N.Y.2d 836 [1986]). The submission of the affidavit of non-party Eddie Squash, plaintiffs husband, is nothing more than a feigned attempt at creating a material issue of fact. The self-serving affidavit comes over a year after plaintiffs deposition in an attempt to defeat the motion for summary judgment. At the time of her deposition, plaintiff testified that she did not notice what caused her to slip and that she had no knowledge as to what caused her to slip. At no time did she mention what her husband allegedly saw. Even if viewed as true, the affidavit of Mr. Squash does not raise any material issues of fact as to Sarlo's constructive notice.
During her deposition Almeida described the weather on the day of the accident as muggy and drizzling with no snow or ice precipitation in the week prior to the accident. She testified that she traversed the walkway several times that day and affirmatively stated there was no ice on the walkway at any point that day. When the plaintiff arrived, Almeida went outside to greet the plaintiff and her family. Neither Almeida nor anyone else had any difficulty traversing the area when they arrived and Almeida did not notice any ice on the walkway. It is also undisputed that Sarlo maintained snow and ice removal obligations and there is no evidence in the record which would otherwise place the obligation upon Almeida. The lease is silent whether the landowner or the tenant was responsible for removal of snow and Sarlo specifically testified that she undertook snow and ice removal activities.
The plaintiff failed to establish, in opposition to Almeida's prima facie showing of entitlement to judgment as a matter of law, that she either created, or had actual or constructive notice of, the allegedly dangerous condition which caused the plaintiff to fall (see, Gordon v American Museum of Natural History, 67 N.Y.2d 836 [1986]; Ligon v Waldbaum, Inc., 234 A.D.2d 347 [2d Dept 1996]). There was no evidence that the alleged patch of ice was present for a sufficient length of time before the accident to permit the defendants to discover and remedy the condition (see, Gordon v American Museum of Natural History, supra, 61 N.Y.2d, at 837; Negri v Stop & Shop, 65 N.Y.2d 625, 626 [1985]; Lewis v Metropolitan Transp. Auth., 64 N.Y.2d 670 [1984]). Furthermore, "a 'general awareness' that a dangerous condition may be present is legally insufficient to constitute notice of a particular condition that caused plaintiffs fall" (Piacquadio v Recine Realty Corp., 84 N.Y.2d 967, 969 [1994]; see also, Cellini v Waldbaum, Inc., 262 A.D.2d 345 [2d Dept 1999]; Bernard v Waldbaum, Inc., 232 A.D.2d 596; Kaplan v Waldbaum's Inc., 231 A.D.2d 680). A self-serving statement that plaintiff advised defendant that the walkway was slippery is insufficient to meet the evidentiary burden necessary to defeat the defendants' motions (see, Gordon v American Museum of Natural History, supra, 67 N.Y.2d 836, Goldman v Waldbuam, Inc., 248 A.D.2d 436 [2d Dept 1998]).
In light of the above, it is hereby
ORDERED that the motion for summary judgment by defendant, MARIA SARLO, dismissing the complaint and all cross-claims is granted in its entirety; and it is further
ORDERED that the motion for summary judgment by defendant, RAFAELLA CARDOSO DE ALMEIDA, dismissing the complaint and all cross-claims is granted in its entirety; and it is further
ORDERED that the complaint is dismissed as against all defendants.
This constitutes the decision and order of the Court.
Submit Judgment on notice.