| Mosley v General Chauncey M. Hooper Towers Hous. Dev. Fund Co.,Inc. |
| 2008 NY Slip Op 01822 [48 AD3d 379] |
| February 28, 2008 |
| Appellate Division, First Department |
| Lillie Mosley, Appellant, v General Chauncey M. HooperTowers Housing Development Fund Company, Inc., Respondent. |
—[*1] Marshall, Conway, Wright & Bradley, P.C., New York City (Steven L. Sonkin of counsel),for respondent.
Order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 9, 2007,which, in an action for personal injuries allegedly caused by a dangerous ice and snow conditionon the sidewalk in front of defendant's premises, granted defendant's motion for summaryjudgment dismissing the complaint, unanimously reversed, on the law, without costs, the motiondenied and the complaint reinstated.
Plaintiff's deposition testimony that it was snowing when she fell at around 9:00 a.m., that ithad been snowing the entire night before, that the entire sidewalk was white with snow, and thatshe slipped on snow, not ice, satisfied defendant's initial burden of showing that plaintiff fellbecause of a dangerous snow condition created by a storm in progress (seeAdministrative Code of City of NY § 16-123 [a]). In opposition, plaintiff submitted anaffidavit stating that she slipped on ice as well as snow and that while there were snow flurriesthe morning of her accident, there was no accumulation; photographs of a sidewalk with patchesof ice, identified by plaintiff at her deposition as fairly and accurately depicting the area ofsidewalk where she fell; and climatological data showing that on the day before plaintiff's fall,New York City had .92 inches of "rain" and "drizzle" between 1:00 p.m. and 7:00 p.m., and thatthere was no precipitation on the day of plaintiff's fall. An issue of fact exists as to whether, interalia, plaintiff was mistaken when she testified at deposition that it was snowing when she fell(see Howard v J.A.J. Realty Enters., 283 AD2d 854, 855-856 [2001] [summary judgmentin defendant's favor precluded by conflict between plaintiff's deposition testimony that it wassnowing and affidavit of meteorological expert that it was not]; cf. Powell v MLG HillsideAssoc., 290 AD2d 345, 345 [2002] [evidence of storm in progress especially persuasivewhen based on analysis of licensed meteorologist]). Concur—Mazzarelli, J.P., Andrias,Saxe, Gonzalez and Sweeny, JJ.