Opinion
7280 Index 156815/14
10-11-2018
Cecy THOMAS, Administratrix of the Estate of Thomas Santos, Plaintiff–Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellant. The Law Offices of Jeffrey F. Levine, New York (Jeffrey F. Levine of counsel), for respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellant.
The Law Offices of Jeffrey F. Levine, New York (Jeffrey F. Levine of counsel), for respondent.
Sweeny, J.P., Tom, Gesmer, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered November 22, 2017, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant established, through an expert report and meteorological records, that on January 5, 2014, a freezing rain storm occurred before the decedent's alleged accident and ended after or shortly before the accident, implicating the storm-in-progress doctrine (see generally Colon v. 36 Rivington St., Inc., 107 A.D.3d 508, 968 N.Y.S.2d 23 [1st Dept. 2013] ). However, defendant failed to establish the condition of the walkway on which the decedent fell before the storm began. The meteorological records show that a snow storm had occurred on January 2 and 3, causing between six and seven inches of snow to fall. They also show that the snow melted and re-froze on January 4. Thus, defendant failed to eliminate the issues of fact whether there was ice on the walkway before the freezing rain storm began and whether it had been there long enough for defendant to discover and remedy the situation (see Mike v. 91 Payson Owners Corp., 114 A.D.3d 420, 979 N.Y.S.2d 332 [1st Dept. 2014] ; Bojovic v. Lydig Bejing Kitchen, Inc., 91 A.D.3d 517, 518, 936 N.Y.S.2d 205 [1st Dept. 2012] ).
We agree with defendant that the decedent's own testimony appears to contradict itself on numerous occasions, and strains credulity on others. However, we do not find the testimony incredible as a matter of law, and leave it to the trier of fact to evaluate.
We have considered defendant's remaining contentions and find them unavailing.