Opinion
Index No. 2019-54556
08-23-2021
AMANDA WISER, Plaintiff, v. AMITY CONSTRUCTION CORP., Defendant.
Unpublished Opinion
DECISION AND ORPFP
HON. MICHAEL G. HAYES, AJSC
The Court read and considered the following documents upon this motion:
PAPERS NUMBERED
Notice of Motion...................... 1
Statement........................ 2
Affirmation...................... 3
Exhibits......................... 4
Memorandum of Law in Opposition....... 5
Response to Statement............ 6
Affirmation in Reply.................. 7
Defendant moves for an order, pursuant to CPLR 3212, granting it summary judgment and dismissing the plaintiff's complaint.
Background
Plaintiff brings this action seeking to recover damages allegedly sustained on January 4, 2018, when she slipped and fell on snow and/or ice on the stairs exiting the building of her employer, Hudson Valley Federal Credit Union ("HVFCU") located at 107 Boardman Road, Poughkeepsie, New York. Plaintiff alleges that defendant Amity Construction Corp. ("Amity") contracted with HVFCU to undertake a comprehensive and exclusive obligation to maintain the premises. Plaintiff maintains that the snow and/or ice condition constituted a dangerous and unsafe condition which existed for a reasonable period of time before the plaintiff fell.
Defendant Amity states that it cannot be held liable for the plaintiff's injuries under the storm-in-progress doctrine. Additionally, Amity alleges that it is not liable to the plaintiff as it owed her no duty of care under Espinal v. Melville Snow Contrs., 98 N.Y.2d 136 [2002] and its progeny.
Defendant's Motion for Summary Judgment
On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 N.Y.2d 361 [1974]). The movant must set forth a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]). Once the movant sets forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]).
"Under the 'storm in progress rule,' neither a landlord nor a snow removal contractor will be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter" (Smilowitz v GCA Serv. Group, Inc., 101 A.D.3d 1101 [2nd Dept 2012]). However, "snow or ice removal actions undertaken during a storm may be actionable if performed negligently, i.e., they either create a hazardous condition or exacerbate the naturally hazardous condition created by the storm" (Grau v Taxter Park Assoc., 283 A.D.2d 551 [2nd Dept 2001]).
In support of its motion for summary judgment Amity submits the affidavit of Alicia C. Wasula, PhD, CCM, an American Meteorological Society Certified Consulting Meteorologist. Dr. Wasula states that a winter storm brought accumulating snow to the region beginning on January 3, 2018. The National Weather Service issued a Winter Weather Advisory on January 3, 2018 at 3:01 p.m., which was in effect from 1:00 a.m. on January 4 through 1:00 on January 5. The official forecast called for between two to five inches of snow, with blowing snow expected and gusty winds. Dr. Wasula states that the Winter Weather Advisory was upgraded to a Winter Storm Warning at 11:14 a.m. on January 4, 2018 and the expected accumulation was increased to between six to eight inches of snow.
Based upon Dr. Wasula's review of the relevant meteorological data, it is her opinion that the weather near 137 Boardman Road, Poughkeepsie, New York at approximately 2:00 p.m. on Thursday, January 4, 2018 was, as follows: (1) air temperature was approximately 2 0 degrees Fahrenheit; (2) the sky was overcast; (3) moderate to heavy snow was falling; (4) the winds were blowing north between 15 to 20 miles an hour, with gusts up to 35 miles per hour; (5) the wind direction shifted from north to northwest at or near the time of the incident; (6) there was approximately one inch of snow depth present on the ground on untreated surfaces prior to the onset of the snow at approximately 7:20 a.m. on January 4, 2018; (7) at the time of the incident, there was likely between two and three inches of snow depth present on the ground on untreated surfaces, although significant blowing and drifting of snow was occurring.
Dr. Wasula is of the opinion that the snow which was present on the steps at the time of the accident was most likely blown there as a result of ongoing moderate snowfall in combination with strong winds.
Plaintiff testified that a co-worker drove her to work on the day of the accident (see Deposition of Plaintiff at p 15 lines 2-5). She states that it was steadily snowing when she left her house at 7:20 a.m. (see Deposition of Plaintiff at p 15 lines 6-12). Plaintiff testified that she observed snow and ice falling from her office between 8:00 a.m. and 2:00 p.m. (see Deposition of Plaintiff at pp 19-20 lines 22-25, 1-5). At approximately 12:30 p.m., plaintiff received an email advising her that HVFCU was closing early due to weather conditions (see Deposition of Plaintiff at p 21 lines 4-8). As plaintiff exited the building at approximately 2:05 p.m., she observed snow falling and snow and ice on the stairs and in the parking lot (see Deposition of Plaintiff at p 23 lines 2-18) .
Defendant also offers the deposition of Matthew Thompson, President of Amity Construction Company. Mr. Thompson testified that as of 6:00 a.m. on January 4, 2018, he knew there was a storm coming or in progress and had five people assigned to the HVFCU site (see Deposition of Thompson at p 23 lines 13-23) . Amity was required to maintain snow removal from the start of the storm until the time the storm ended (see Deposition of Thompson at p 12 lines 16-23). Mr. Thompson stated that he left the property at approximately 1:30 p.m. and the snow was coming down very hard (see Deposition of Thompson at p 39 lines 6-10). At 1:30 p.m. the staircase was absolutely clear, according to Mr. Thompson (see Deposition of Thompson at p 25 lines 17-20). Mr. Thompson states that snow amassed on the staircase due to the fact that it had blown off the roof (see Deposition of Thompson at p 26 lines 9-14) . Mr. Thompson states that January 4, 2018 is the first time that he had observed snow blow off the roof of 137 Boardman Road onto the stairs (see Deposition of Thompson at p 26 lines 15-20).
The evidence submitted by Amity in support of its motion, including climatological data, the affidavit of Dr. Wasula, the transcripts of the deposition testimony of the parties, demonstrates, prima face, that the storm was still in progress at the time of the accident (see Wroblewski v Williams, 173 A.D.3d 1120 [2nd Dept 2019]). Additionally, the record is devoid of evidence that the hazardous condition, snow blown from the roof onto the stairway leading to the parking lot, was either created or exacerbated by the efforts of Amity (see Grau v Taxter Park Assoc, 283 A.D.2d 551 [2nd Dept 2001]).
The Court will also address the branch of defendant's motion seeking summary judgment based upon its lack of duty owed to the plaintiff.
In general, a snow-removal contractor's contractual obligation for snow removal standing alone will not give rise to tort liability to an injured plaintiff unless: (1) in failing to exercise reasonable care in the performance of its duties, it launched a force or instrument of harm; (2) the plaintiff detrimentally relied on the continued performance of the snow removal contractor's duties, or (3) the snow removal contractor has entirely displaced the property owner's duty to maintain the premises safely (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136 [2002]). The deposition testimony of the parties fail to offer any inference of Amity launching an instrument of harm, i.e. creating the ice/snow buildup on the stairs leading to the parking lot. Moreover, the injured plaintiff was not a party to the snow removal contract; thus, it owed no duty of care to the injured plaintiff (see Rudloff v. Woodland Pond Condominium Assn, 109 A.D.3d 810 [2nd Dept 2013]). Additionally, there is not any evidence that Amity entirely displaced the property owner's duty to maintain the premises safely. To the contrary, the 2017-2020 snow removal contract concerning the property at 13 7 Boardman Road specifically required HVFCU to: (1) regularly inspect properties for snow & ice conditions (Notify Contractor of any snow & ice conditions that may be a potential liability); (2) notify Amity within 1 hour of a slip and fall incident; and, (3) notify Amity of any thaw or freeze or refreeze causing a black ice condition. Although, Amity undertook to provide snow and ice removal services under specific circumstances, HVFCU at all times retained its landowner's duty to inspect and safely maintain the premises (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136 [2002]) .
Since defendant has made a prima facie showing of entitlement to judgment as a matter of law (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]), plaintiff must show that genuine triable issues of material fact exist in order to defeat defendant's motion (id.) .
In opposition to the motion, plaintiff submits a memorandum of law and a response to the defendant's statement of undisputed facts.
In opposition, plaintiff alleges that although defendant knew that snow could blow off the roof onto the stars, it did not assign anyone to monitor the stairs when the entire crew took a break at 1:30 p.m. Under the circumstances, plaintiff maintains that defendant's failure to act in the face of a known hazard and risk of injury launched a force of harm that constitutes an exception to the Espinal rule and exacerbated the natural hazard of blowing snow.
Contrary to plaintiff's contention concerning defendant's knowledge of a known hazard, Mr. Thompson testified that January 4, 2018 was the first time he had ever witnessed snow blow off the roof of 13 7 Boardman Road and land on the staircase (see Deposition of Thompson at p 26 lines 9-20). Plaintiff conflates the issue of actual or constructive knowledge of snow blowing off the roof at 137 Boardman Road onto the stairs with Mr. Thompson's general knowledge that snow could blow off a roof (see Deposition of Thompson at p 46 lines 9-23). Plaintiff has not produced any evidence that the snow condition on the stairs, caused by snow blowing off the roof, was in the nature of a recurring dangerous condition of which defendant had actual or constructive notice (see Nroblewski v. Williams, 173 A.D.3d 1120 [2nd Dept 2019]; compare Mosley v. State of New York, 150 A.D.3d 1659 [4th Dept 2017]).
Additionally, plaintiff's contention that defendant's decision to allow its crew a lunch break between 1:30 and 2:00, so that hundreds of employees could exit the property, created or exacerbated the condition is insufficient to raise an issue of fact. Mr. Thompson testified that the stairway was "absolutely" clear when he left to get his crew coffee at 1:30 (see Deposition of Thompson at p 25 lines 17-20). There has been no evidence offered by the plaintiff that defendant's snow removal efforts created or exacerbated the hazardous condition upon which the plaintiff allegedly fell (see Cotter v Brookhaven Mem. Hosp. Ctr., Inc., 97 A.D.3d 524 [2nd Dept 2012]). The mere failure of the defendant to remove all of the snow or ice, without more, does not establish that the defendant increased the risk of harm (see Balagyozyan v. Federal Realty L.P., 191 A.D.3d 749 [2nd Dept 2021]) .
Based upon the foregoing, it is hereby ORDERED, defendant's motion for summary judgment is granted and plaintiff's complaint is dismissed.
This constitutes the decision and order of the court.