Opinion
2013-01-31
Laura WEINBERGER, Plaintiff–Appellant, v. 52 DUANE ASSOCIATES, LLC, Defendant–Respondent. A & E Stores, Inc., etc., Defendant.
Hill & Moin LLP, New York (Cheryl Eisberg Moin of counsel), for appellant. Hoey, King, Epstein, Prezioso & Marquez, New York (Erik C. Porcaro of counsel), for respondent.
Hill & Moin LLP, New York (Cheryl Eisberg Moin of counsel), for appellant. Hoey, King, Epstein, Prezioso & Marquez, New York (Erik C. Porcaro of counsel), for respondent.
GONZALEZ, P.J., FRIEDMAN, MOSKOWITZ, DeGRASSE, FREEDMAN, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered October 18, 2011, which granted defendant 52 Duane Associates, LLC's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
In this action alleging injuries for a fall on an icy sidewalk, defendant established prima facie entitlement to summary judgment by submitting certified climatological data, showing that a storm was in progress at the time of plaintiff's fall ( seeCPLR 4528; Dowden v. Long Is. R.R., 305 A.D.2d 631, 759 N.Y.S.2d 544 [2nd Dept. 2003] ). A landowner's duty to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while a storm is in progress, and does not commence until a reasonable time after the storm has ended ( see Solazzo v. New York City Tr. Auth., 21 A.D.3d 735, 735–736, 800 N.Y.S.2d 698 [1st Dept. 2005], affd. 6 N.Y.3d 734, 810 N.Y.S.2d 121, 843 N.E.2d 748 [2005];Valentine v. City of New York, 86 A.D.2d 381, 383, 449 N.Y.S.2d 991 [1st Dept. 1982], affd. 57 N.Y.2d 932, 457 N.Y.S.2d 240, 443 N.E.2d 488 [1982];Pippo v. City of New York, 43 A.D.3d 303, 304, 842 N.Y.S.2d 367 [1st Dept. 2007] ).
In opposition, plaintiff failed to raise a triable issue of fact that a storm was in progress. While plaintiff's experts opined that there was no “freezing rain” at the moment of her fall, her meteorological expert determined that a winter storm, which started on February 12, 2008, left snow, sleet and ice on the ground at approximately 7 a.m. on the morning of February 13, 2008, the date of plaintiff's accident. At the time of plaintiff's accident, around 8:30 a.m., while it was no longer below the freezing level, the weather was cold, and it was raining. Thus, inasmuch as it is uncontradicted that the ice condition that caused plaintiff's accident developed during this ongoing storm, defendant is entitled to the defense ( see Solazzo at 735–736, 800 N.Y.S.2d 698; McConologue v. Summer St. Stamford Corp., 16 A.D.3d 468, 469, 792 N.Y.S.2d 101 [2nd Dept. 2005] ).
Nor does plaintiff's affidavit raise an issue of fact as to whether defendant created a dangerous condition by trying to make a path before the accident, since it contradicted her earlier, sworn deposition, where she testified, inter alia, that there was no path ( see Krinsky v. Fortunato, 82 A.D.3d 409, 918 N.Y.S.2d 40 [1st Dept. 2011];Garcia–Martinez v. City of New York, 68 A.D.3d 428, 891 N.Y.S.2d 21 [1st Dept. 2009] ).
Since plaintiff's affidavit must be disregarded, her safety expert, who rendered his opinion on such affidavit, and stated that defendant created a dangerous condition, must also be disregarded ( see Rand v. Cornell Univ., 91 A.D.3d 542, 937 N.Y.S.2d 49 [1st Dept. 2012] ). Moreover, defendant's custom and practice may not serve as evidence that it created any dangerous condition ( see Prince v. New York City Hous. Auth., 302 A.D.2d 285, 756 N.Y.S.2d 158 [1st Dept. 2003] ).