| Pierson v North Colonie Cent. School Dist. |
| 2010 NY Slip Op 05625 [74 AD3d 1652] |
| June 24, 2010 |
| Appellate Division, Third Department |
| Allison Pierson et al., Appellants, v North Colonie Central SchoolDistrict, Respondent. |
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Spain, J. Appeals (1) from an order of the Supreme Court (McDonough, J.), entered March26, 2009 in Albany County, which, among other things, denied plaintiffs' motion to compeldiscovery, and (2) from an order of said court, entered July 28, 2009 in Albany County, which,among other things, granted defendant's cross motion for summary judgment dismissing thecomplaint.
At about 8:00 a.m. on January 4, 2006, plaintiff Allison Pierson (hereinafter plaintiff) arrivedat Forts Ferry School in Latham, Albany County, to drop off her six-year-old daughter. Plaintiffparked her car and then she and her daughter proceeded across the asphalt parking lot, traversingthrough a white-striped walkway—about the width of an automobile—that leads tothe concrete sidewalk that connects the parking lot to the school building. After exiting theschool building to return to her vehicle via the same route, plaintiff slipped within the stripedwalkway causing her to fall and fracture her ankle.
Plaintiff and her husband, derivatively, commenced this negligence action in December 2006without having served a notice of claim on defendant (see General Municipal Law§ 50-e [1] [a]), but thereafter moved for and received permission from SupremeCourt—by order dated May 29, 2007—to serve a late notice of claim. In February2008, plaintiffs were also given permission to serve an amended complaint. On March 30, 2008[*2]the court directed, in a scheduling order, that all discovery becompleted and a note of issue filed by October 30, 2008. In mid-October 2008, at plaintiffs'request, the court entered a second scheduling order extending the discovery completion/note ofissue deadline to January 5, 2009.
On January 8, 2009, three days after the expiration of Supreme Court's second schedulingorder, plaintiffs moved to compel certain discovery and to further extend the deadline in thesecond order. Defendant opposed the motion and cross-moved for a protective order and an ordercompelling plaintiffs to file a note of issue. Noting plaintiffs' failure to abide by the schedulingorders, the court denied plaintiffs' motion in its entirety, denied defendant's request for aprotective order and directed plaintiffs to file a note of issue within 10 days. Plaintiffs appealfrom this order. Thereafter, defendant cross-moved for summary judgment dismissing thecomplaint alleging that plaintiffs' pleadings and plaintiff's own testimony establish that defendantdid not have notice of the alleged icy condition. The court granted defendant's cross motion forsummary judgment, and plaintiffs also appeal from this order.
Initially, we reject plaintiffs' contention that Supreme Court abused its discretion byrequiring them to file their note of issue without permitting additional discovery. While plaintiffsconcede that their motion to compel discovery was late, they assert that the delay was "minimal"and did not prejudice defendant. "Where, as here, a party fails to comply with a discovery order,CPLR 3126 authorizes the court to fashion an appropriate remedy, the nature and degree ofwhich is a matter committed to the court's sound discretion" (Pangea Farm, Inc. v Sack, 51 AD3d 1352, 1354 [2008] [citationsomitted]; see Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Congleton v United Health Servs.Hosps., 67 AD3d 1148, 1150 [2009]), and such a remedy will not be set aside "absentclear abuse, despite a general policy which favors resolution of disputes on their merits" (Cavanaugh v Russell Sage Coll., 4AD3d 660, 660 [2004]; see Matterof John H., 60 AD3d 1168, 1169 [2009]; Pangea Farm, Inc. v Sack, 51 AD3d at1354).
Here, the record amply reflects that Supreme Court patiently entertained plaintiffs' motionpractice and afforded them numerous adjournments and extensions which had already protractedthe litigation for more than two years. While plaintiffs offer an extensive argument as to thequality and merit of their January 8, 2009 motion to compel discovery, they address, onlyminimally, their conceded failure to abide by the deadlines previously set by the court. Therecord demonstrates that plaintiffs' failure to comply with the court's scheduling orders causedmore than a minimal delay. In our view, the court properly exercised its discretion in denyingplaintiffs' motion (see CPLR 3126; Congleton v United Health Servs. Hosps., 67AD3d at 1150).
Turning next to defendant's cross motion for summary judgment, it is well settled that "[f]orliability to be imposed upon a landowner for a slip and fall, it must be established 'that thelandowner knew, or in the exercise of reasonable care, should have known that a dangerouscondition existed but, nevertheless, failed to remedy the situation within a reasonable timeperiod' " (Martin v RP Assoc., 37AD3d 1017, 1017 [2007], quoting McCombs v Related Mgt. Co., 290 AD2d 681,681 [2002]; see Orr v Spring, 288 AD2d 663, 663-664 [2001]; Wimbush v City ofAlbany, 285 AD2d 706, 706 [2001]). Significantly, "[d]efendant's general awareness that icyconditions might have existed is insufficient to establish constructive notice of the specificcondition that resulted in plaintiff's injuries" (DiGrazia v Lemmon, 28 AD3d 926, 927 [2006], lv denied7 NY3d 706 [2006]; see Richer v Stateof New York, 31 AD3d 943, 944 [2006]; Wimbush v City of Albany, 285AD2d at 707).
Here, through the affidavits of three of defendant's personnel, each of whom traversed [*3]the area in question on the morning of and prior to plaintiff's falland reported that they did not observe any snow or ice in the striped walkway, defendantestablished that it did not have actual notice of the icy condition. Moreover, plaintiffunequivocally acknowledged that she did not recall observing any ice or snow as she walkedthrough the walkway on her way into the school and, accordingly, made no complaint that wouldhave put defendant on notice of any icy condition.
As to constructive notice, plaintiffs are required to present evidence "that the condition wasvisible and apparent and existed for a sufficient period of time prior to the accident to permitdefendant[ ] to discover it and take corrective action" (Boyko v Limowski, 223 AD2d962, 964 [1996]; see Cardinale v Watervliet Hous. Auth., 302 AD2d 666, 667 [2003];Wimbush v City of Albany, 285 AD2d at 706-707). Given the record evidence that theicy condition was neither visible nor apparent, a fact reinforced by plaintiff's own testimony thatthe icy condition only became obvious to her after she had fallen and was lying on the ground,we discern no triable issue of fact on the issue of notice.
Similarly, plaintiffs failed to demonstrate that the condition existed "for a sufficient period oftime prior to the accident to permit defendant[ ] to discover it and take corrective action"(Martin v RP Assoc., 37 AD3d at 1017-1018 [citations omitted]). Plaintiffs submitted theaffidavit of meteorologist Howard Altschule, who opined that the icy condition was the result ofa thawing then freezing of several inches of snow, which resulted in the formation of ice that waspresent for at least 11 hours prior to plaintiff's fall. While Altschule purportedly relied upon avast array of data from local and national meteorological weather services in rendering hisopinion, he failed to provide any documentation of the data he had utilized. As such, theaffidavit, which is without proper foundation, was appropriately rejected by Supreme Court(see id. at 1019). Moreover, the expert's opinion "fails to shed any light on whether [the]ice was visible and apparent so as to permit discovery before the accident" (DiGrazia vLemmon, 28 AD3d at 928). Accordingly, no triable issues of fact exist regarding actual orconstructive notice.
Mercure, J.P., Peters, Rose and Kavanagh, JJ., concur. Ordered that the orders are affirmed,without costs.