Opinion
701886/2015
01-04-2017
Priscilla Wong, Plaintiff, v. Our Lady of the Angelus Church, Defendant.
The following electronically filed documents read on this motion by defendant, OUR LADY OF THE ANGELUS CHURCH, for an Order pursuant to CPLR 3212, granting defendant summary judgment: Papers Numbered Notice of Motion-Affidavits-Exhibits EF 12 - 25 Affirmation in Opposition-Exhibits EF 26 - 31 Reply Affirmation EF 32
This is an action for damages for personal injuries sustained by plaintiff on December 11, 2014 at approximately 7:45 a.m. when she slipped and fell on the sidewalk in front of defendant's premises located at 63-63 98th Street, Rego Park, New York.
Plaintiff commenced this action by filing a summons and verified complaint on February 27, 2015. Defendant joined issue by service of a verified answer dated April 15, 2015. On June 13, 2016, plaintiff filed a Note of Issue and Certificate of Readiness. Defendant now timely moves for summary judgment on the ground that it cannot be held liable based on the doctrine of the storm in progress.
Plaintiff appeared for an examination before trial on September 29, 2015. She testified that at the time of the incident, she was walking to the R train located at 63rd Drive in Rego Park. The weather at the time of the incident was very cold, dark, and cloudy. There was no precipitation. She believes that it snowed the day before the incident, but does not know when the snow began or when it stopped. There was no precipitation from the time she woke up at 6:30 a.m. until the time of the incident. As she walked along 64th Avenue, she was looking straight ahead and walking at a slow pace. She noticed patches of ice on the sidewalk prior to falling. She moved from the middle of the sidewalk to the side of the sidewalk closer to the road. After passing the patches of ice, she moved back to the middle of the sidewalk. Three to four seconds later, the incident occurred. She stepped on ice, lost her balance, and fell. At the location of the incident, prior to the incident, she did not observe any snow or ice. She did not see any salt, sand, or other material on the sidewalk before or after the incident. She did observe snow piled next to the fence surrounding defendant's property and near the curb and tree bed.
Father John Mendonca appeared for an examination before trial on behalf of defendant on September 29, 2015. He testified that the Church employed a custodian. The custodian's duties included cleaning the church, caretaker of the sidewalk, and general care of the Church property. The Church employed a company to perform snow removal on the sidewalk next to the parking lot which abuts 64th Avenue. This company would perform snow removal services when it snowed more than two inches or if the Church called the company. The company was expected to perform snow and ice removal in less than an hour after the snowfall. He did not know where the company would move the snow it removed from the sidewalk. He did not know if the company piled the snow by the fence surrounding the property or by the curb. Prior to the incident, he never made any complaints to the snow removal company regarding its work. The custodian, when on duty, would also perform snow removal duties at the property. The Church maintained a snow blower and salt.
Non-party witness Jose Teja appeared for an examination before trial on January 7, 2016. He testified that he was the custodian at the Church on the date of the incident. On weekdays, he worked from 6:30 a.m. to 1:00 p.m. In the wintertime, after the second mass ended at 8:00 a.m., he would clean the interior of the Church and then clear off any snow on the steps of the three entrances. He would not perform snow removal until the mass was over. The Church hired a snow removal company to perform snow removal services on the sidewalks adjacent to the property and the parking lot. After the company removed the snow from the sidewalk, he would use an ice scraper on the sidewalk to clean off the ice and apply salt. The company would decide whether to use a plow or a hand-held shovel. He was solely responsible for applying rock salt or calcium chloride. He was advised by Father Mendonca that he was expected to clear the ice and apply salt after the snow removal company finished. When the company came during the night, he would find a frozen icy condition on the sidewalk in the morning.
In support of the motion, defendant also submits an expert affidavit from meteorologist George Wright. Mr. Wright affirms that between two-tenths and three-tenths of snow fell at defendant's premises between approximately midnight and 7:50 a.m. on the date of the incident. Snow ended at the premises by 7:50 a.m. Annexed to his affidavit are official copies of weather and climatological data.
Counsel for defendant, Keri A. Wehrheim, Esq., argues that based on the deposition testimonies and Mr. Wright's affidavit, defendant is entitled to judgment as a matter of law based on the doctrine of the storm in progress.
In opposition, counsel for plaintiff, Raymond Maceira, Esq., argues that defendant failed to meet its initial burden as it failed to come forward with any evidence regarding what steps were taken to clear snow and ice from the sidewalk adjacent to its property in the days leading up to plaintiff's incident. Thus, defendant failed to demonstrate that any snow removal efforts did not cause or exacerbate the hazardous condition. Counsel also contends that plaintiff's testimony contradict's Mr. Wright's affidavit as plaintiff testified that it was not snowing at the time of the incident. Thus, issues of fact remain as to whether the storm in progress rule applies.
"A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive notice of it" (McBryant v Pisa Holding Corp., 110 AD3d 1034 [2d Dept. 2013] citing Feola v City of New York, 102 AD3d 827 [2d Dept. 2013] quoting Cantwell v Fox Hill Community Assn., Inc., 87 AD3d 1106 [2d Dept. 2011]. A defendant moving for summary judgment must establish, prima facie, that it neither created the snow and ice condition nor had actual or constructive notice of it, and may sustain this burden by presenting evidence that there was a storm in progress at the time of the plaintiff's accident (see Smith v Christ's First Presbyt. Church of Hempstead, 93 AD3d 839 [2d Dept. 2012]; Meyers v Big Six Towers, Inc., 85 AD3d 877 [2d Dept. 2011]). "Under the 'storm in progress' rule, a property owner will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm 'until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm'" (Popovits v New York City Hous. Auth,115 AD3d 657 [2d Dept. 2014] quoting Cotter v Brookhaven Mem. Hosp. Ctr., Inc., 97 AD3d 524 [2d Dept. 2012]).
However, once a landowner or a tenant in possession elects to engage in snow removal, it is required to act with "reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm" (Fernandez v City of New York, 2015 NY Slip Op 01410 [2d Dept. 2015]; Yassa v Awad, 117 AD3d 1037 [2d Dept. 2014]; Gwinn v Christina's Polish Rest., Inc., 117 AD3d 789 [2d Dept. 2014]; Wei Wen Xie v Ye Jiang Yong, 111 AD3d 617 [2d Dept. 2013]).
Here, the evidence submitted by defendant in support of the motion for summary judgment, including certified climatological data, demonstrates that a storm was in progress at the time of the incident (see Meyers v Big Six Towers, Inc., 85 AD3d 877 [2d Dept. 2011]; Skouras v New York City Tr. Auth., 48 AD3d 547 [2d Dept. 2008]; DeStefano v City of New York, 41 AD3d 528 [2d Dept. 2007].
However, looking at the evidence in the light most favorable to the non-moving party, this Court finds that defendant failed to establish, prima facie, that its efforts to remove snow and ice did not create a hazardous condition or exacerbate the natural hazard created by the storm (see Talamas v Metropolitan Transp. Auth., 120 AD3d 1333 [2d Dept. 2014]; Batista v City of New York, 119 AD3d 498 [2d Dept. 2014]; Wei Wen Xie v Ye Jiang Yong, 111 AD3d 617 [2d Dept. 2013]; McCurdy v KYMA Holdings, LLC, 109 AD3d 799 [2d Dept. 2013]). Neither Father Mendonca nor Mr. Teja knew when the subject sidewalk had last been cleared of snow or ice prior to plaintiff's incident or when the snow removal contractor had last been present prior to the incident. Therefore, it cannot be determined as a matter of law that defendant did not create or exacerbate a hazardous condition on the premises (see Salvanti v Sunset Indus. Park Assoc., 27 AD3d 546 [2d Dept. 2006]; Chaudhry v East Buffet & Rest., 24 AD3d 493 [2d Dept. 2005]; Figueroa v West 170th Realty, Inc., 56 AD3d 299 [1st Dept. 2008]).
As defendant failed to establish its entitlement to judgment as a matter of law, it is not necessary to consider the sufficiency of plaintiff's opposition papers (see Giraldo v Twins Ambulette Serv., Inc., 96 AD3d 903[2d Dept. 2012]; King v 230 Park Owners Corp., 95 AD3d 1079[2d Dept. 2012]; Hill v Fence Man, Inc., 78 AD3d 1002 [2d Dept. 2010]).
Accordingly, for all of the above stated reasons, it is hereby
ORDERED, that defendant's motion for summary judgment is denied; and it is further
ORDERED, that this matter remains on the calendar of the Trial Scheduling Part for January 11, 2017. Dated: January 4, 2017
Long Island City, NY
______________________________
ROBERT J. MCDONALD
J.S.C.