| Massey v Newburgh W. Realty, Inc. |
| 2011 NY Slip Op 04086 [84 AD3d 564] |
| May 17, 2011 |
| Appellate Division, First Department |
| Fantasia Massey, Respondent, v Newburgh W. Realty, Inc.,Appellant. |
—[*1] Weiss & Rosenbloom, P.C., New York (Erik L. Gray of counsel), for respondent.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered February 3, 2010,which denied defendant's motion for summary judgment, affirmed, without costs.
This action involves injuries allegedly sustained by plaintiff on March 14, 2007 when sheslipped and fell on a sheet of ice on the sidewalk in front of defendant's premises, a conveniencestore in Newburgh, New York. Plaintiff testified that it was not raining or snowing on the date ofthe accident. At approximately 9:30 p.m., plaintiff's boyfriend, Michael Valerie, drove her to thestore. When they reached the store, plaintiff stepped out of the car; she did not recall seeing anyice, salt or sand on the ground where the car was parked. While walking toward the store'sentrance, plaintiff slipped and fell.
Plaintiff testified that she felt something slippery under both her feet, that her right footslipped out from under her, and she was "just on the floor." While on the ground, plaintiffobserved ice underneath her. The ice extended approximately seven to eight feet to her left andapproximately two to three feet to her right. At deposition, plaintiff identified the generallocation of the accident using a black-and-white facsimile image of a photograph of the accidentlocation.[FN1]
By notice dated April 20, 2009, defendant moved for summary judgment dismissing the[*2]complaint, relying upon the certified climatological recordsand the affidavit of its expert meteorologist, Thomas E. Downs. Downs noted, inter alia, thatno snow, sleet, freezing rain or other precipitation had been recorded at any of the three weatherstations in the area (i.e., Stewart International Airport, Dutchess County Airport and OrangeCounty Airport) in the seven days prior to the accident; that the only precipitation of any kind inthe seven days prior to the accident was light rainfall on March 10th to 11th; that no precipitationwas observed after 3:00 a.m. on March 11th, three days prior to the accident; that hightemperatures registered in the 50s and 60s in the two days prior to the accident; that at 1:00 a.m.on March 14, 2007, the date of the accident, the three weather stations recorded temperatures of41 degrees, 39 degrees and 34 degrees, respectively; and that the weather conditions in the dayspreceding the accident, namely, light rainfall on March 10th to 11th, and mostly sunny skies inthe prior week, would have melted any residual snow or ice remaining on the ground by March12, 2007.
Plaintiff opposed the motion for summary judgment, contending, first, that defendant failedto make a prima facie case. Plaintiff asserted that the affidavit of defendant's expertmeteorologist, Thomas E. Downs, was speculative insofar as it did not take into account therelevant testimonial and photographic evidence in the case in concluding that there was no snowor ice on the ground.
Plaintiff asserted, in any event, that she had raised a triable issue of fact. Plaintiff relied onher deposition testimony and affidavit submitted in opposition to the motion, in which sheaverred that the ice she had slipped on was "hard, dry and approximately one inch thick."
Plaintiff relied, in addition, on certified meteorological records from the Walden 1ESEweather station which indicated that in the 14 days prior to and including March 14th, the date ofthe subject accident, the temperature fell below freezing on each and every day.
By order entered February 3, 2010, the court denied defendant's motion for summaryjudgment, stating that "[i]n light of plaintiff's sworn statements as to the size, thickness anddryness of the ice patch, Valerie's sworn and corroborating eye-witness statements, and thephotograph clearly depicting a large, thick patch of ice, this court cannot determine as a matter oflaw that it would have been impossible for ice to be present on the sidewalk where plaintiff fell."The court found Downs's affidavit not dispositive on the subject of whether it would have beenimpossible for ice to be present at the time and location of plaintiff's accident. The court notedthat defendant's expert did "not conclude that the presence of ice would have been 'impossible'under the [meteorological] circumstances, and does not address specifically whether an area ofice approximately seven feet by three feet, and one inch thick, could be present under suchcircumstances."
Finally, the court found that defendant had not met its burden as to constructive notice, sinceit failed to produce an affidavit, deposition testimony, or any other competent proof from anemployee of its convenience store.
Summary judgment in a snow or ice case is proper where a defendant demonstrates, throughclimatological data and expert opinion, that the weather conditions would preclude the existenceof snow or ice at the time of the accident (see Perez v Canale, 50 AD3d 437 [2008]). CPLR 4528 providesthat "[a]ny record of the observations of the weather taken under the direction of the UnitedStates weather bureau, is prima facie evidence of the facts stated."
Defendant argues that the motion court erred in finding that it had not established prima facieentitlement to summary judgment. However, defendant's expert's opinion was arguablyspeculative insofar as it failed to take into account plaintiff's testimony concerning the nature of[*3]the ice, nor did it address plaintiff's photograph showing iceat the accident location (see Neidert v Austin S. Edgar, Inc., 204 AD2d 1030, 1031[1994] [stating that "(t)he meteorologist's opinion that the weather conditions prevailing in theregion could produce areas of black ice supports only speculation about actual conditions at theaccident scene"]).
Further, as noted by the motion court, defendant did not satisfy its burden of establishing lackof constructive notice as a matter of law since it failed to submit an affidavit, depositiontestimony or other competent evidence from a store employee establishing that any employeesregularly inspected the sidewalk (seeStrange v Colgate Design Corp., 6 AD3d 422 [2004]).
Even if we assume that defendant's meteorological data established prima facie entitlement tosummary judgment, plaintiff's testimony, together with the meteorological data and photographicevidence of the alleged hazard, was sufficient to establish an issue of fact as to whether defendanthad constructive notice of the alleged hazard.
Plaintiff testified that she felt something slippery under both her feet and that after she hadfallen she observed ice on the ground beneath her. She identified the location of the ice onphotographs of the scene, and described the ice as approximately one inch thick and extendingseven to eight feet to the left and approximately two to three feet to the right. In addition, weatherdata submitted by plaintiff established that the temperature fell below freezing every day prior toMarch 14, 2007, the date of plaintiff's accident. This evidence concerning the nature of the iceand the climactic conditions is sufficient, at this stage, to raise a triable issue of fact (see Ralatv New York City Hous. Auth., 265 AD2d 185 [1999] [firsthand observations of icycondition, in addition to weather data establishing residual accumulation from earlier storms,constituted sufficient evidence from which a jury could infer that plaintiff's fall was caused bypreexisting ice]; Tubens v New York City Hous. Auth., 248 AD2d 291, 292 [1998][weather data, in addition to plaintiff's firsthand observation of the condition of the steps at thetime of her fall, namely, that they were covered with hard ice that was thick, old and dirty,provided sufficient evidence from which a jury could infer that her fall was caused by thepreexisting ice]; Candelier v City of New York, 129 AD2d 145 [1987] [jury couldreasonably infer from plaintiff's testimony concerning ice on which he slipped, which hedescribed as one or two inches thick, hard, slippery, bumpy and uneven, that ice had existed for aperiod of at least seven days, and had not developed solely as a result of snowfall on the daysimmediately preceding the accident]; see also Rivas v New York City Hous. Auth., 261AD2d 148 [1999] [weather conditions, including temperatures consistently around freezing forthe three-day period before plaintiff's accident, supported conclusion that plaintiff fell onpreexisting ice, not fresh snow]).
In this case, unlike storm-in-progress cases such as Candelier, we are not presentedwith the difficulty of determining whether a fall was attributable to old ice, as opposed to freshlyaccumulating snow. In this case, the only evidence in the record is that plaintiff fell on anextensive ice plate, described as one inch thick and extending seven feet across. The evidencesupports a reasonable inference, given the freezing temperatures in the month of February inUpstate New York, that plaintiff fell on an old accumulation of ice (see Sprague v Profoods Rest. Supply,LLC, 77 AD3d 585 [2010]; Walters v Costco Wholesale Corp., 51 AD3d 785 [2008][testimony that icy condition was visible immediately after plaintiff's fall, together with evidencethat there was precipitation and intermittently freezing temperatures on the days prior toplaintiff's fall, raised a triable issue of fact]).
The dissent asserts that plaintiff failed to establish the origin of the ice patch on which she[*4]slipped, citing to Lenti v Initial Cleaning Servs., Inc. (52 AD3d 288[2008]).[FN2]However, it may reasonably be inferred from plaintiff's description of the ice, the photo, and theclimatological data showing freezing temperatures that the ice was attributable to a prior winterstorm. We accordingly find, at this stage, that plaintiff has sufficiently raised a triable issue offact. Concur—Andrias, J.P., Moskowitz and Manzanet-Daniels, JJ.
Catterson and RomÁn, JJ., dissent in a memorandum by RomÁn, J., as follows:Because I believe that defendant established prima facie entitlement to summary judgment andthat plaintiff failed to raise a triable issue of fact on the issue of notice, defendant is entitled tosummary judgment, and therefore I dissent.
The instant action is for personal injuries allegedly sustained by plaintiff when she slippedand fell on ice on the sidewalk abutting premises owned and maintained by the defendant.Defendant moved for summary judgment and the motion court, both rejecting defendant's expertevidence and finding that defendant did not establish an absence of constructive notice, denieddefendant's motion, concluding that defendant failed to establish prima facie entitlement tosummary judgment.
In support of its motion for summary judgment, defendant submitted plaintiff's depositiontestimony that on Wednesday, March 14, 2007, at 9:30 p.m., she slipped and fell on ice whiletraversing the sidewalk abutting premises located at 193 Broadway, Newburgh, New York.Plaintiff, a resident of New York City, was in Newburgh visiting her boyfriend. She had been inNewburgh since March 11, 2007, the preceding Sunday, and had remained indoors until shortlybefore the instant accident. Plaintiff did not see the ice before her fall, but based on post-fallobservations described the patch as large and spanning several feet. She had no idea when it hadlast snowed and saw no other ice or snow prior to her fall. Defendant also submitted twoaffidavits from a meteorologist, who rendered an opinion based on his review of climatologicalrecords chronicling the weather in the area where plaintiff alleges to have slipped. Defendant'smeteorologist opined that based on the unusually high temperatures existing on March 14, 75degrees at 3:00 p.m. and 57 degrees at 9:30 p.m., the conditions were not conducive to iceexisting at the location of this accident. Thus, the meteorologist concluded that on March 14 at9:30 p.m., there was no ice or snow on the ground at the location of this accident. Themeteorologist further stated that in the seven days preceding this accident, there had been nowintry precipitation; the only precipitation consisted of light rainfall on March 10 to 11, whichceased after [*5]3:00 p.m. on the 11th. Thereafter on March 10through 13, the temperatures were in the 50s and 60s, thus any residual snow would have meltedby March 12.
In opposition to defendant's motion, plaintiff submitted an affidavit, wherein she stated that aphotograph annexed thereto was a fair and accurate representation of the patch of ice upon whichshe fell, and that the ice was hard, dry, and an inch thick. Plaintiff also submitted an affidavitfrom her boyfriend, wherein he states that he took the photograph. He likewise stated it was a fairand accurate representation of the patch of ice upon which plaintiff fell, describing in the sameway as plaintiff. Lastly, plaintiff submitted climatological records evincing that in the days priorto her fall the temperatures had dipped below freezing.
The mere presence of an ice patch, by itself, does not cast a defendant in negligence therebymaking him or her liable for an accident (Lenti v Initial Cleaning Servs., Inc., 52 AD3d 288, 289 [2008]).Instead, to establish liability for an icy condition, it must be proved that a defendant had eitheractual or constructive notice of the icy condition (Simmons v Metropolitan Life Ins. Co.,84 NY2d 972, 973-974 [1994]; Slates vNew York City Hous. Auth., 79 AD3d 435, 436 [2010]; Grillo v New York City Tr.Auth., 214 AD2d 648, 648-649 [1995], lv denied 87 NY2d 801 [1995]). Withrespect to notice, the salient inquiry is whether there is "evidence from which it may be inferredthat the ice on which [a plaintiff] slipped was present on the sidewalk for a long enough period oftime before the accident that the party responsible for the sidewalk would have had time todiscover and remedy the dangerous condition" (Lenti at 289). Liability hinges upon adefendant's remedial actions, if any, once it knows or should have known of an icy condition'sexistence. Therefore, when it is alleged that an icy condition existed for a protracted period oftime because it is the direct result of prior precipitation or storm, a plaintiff must conclusivelyestablish that the icy condition originated therefrom (Bernstein v City of New York, 69NY2d 1020, 1022 [1987]; Simmons at 973-974; Steo v New York Univ., 285AD2d 420, 421 [2001]; Fuks v New York City Tr. Auth., 243 AD2d 678, 678-679[1997]; Grillo at 649). This is particularly true when the sole basis for notice is the lengthof time between an accident and a prior storm rather than actual notice of the condition by thedefendant or prior observation of the condition such that constructive notice can be inferred.
Here, contrary to the motion court's decision and the assertions by the majority, defendantestablished prima facie entitlement to summary judgment. Defendant's meteorologist, based uponhis review of pertinent climatological records, also submitted with defendant's motion, opinedthat given the weather conditions existing at the time of plaintiff's accident and in the seven dayspreceding it, there was no ice existing on the sidewalk where plaintiff alleges to have fallen. Byestablishing the absence of any ice at this location for at least two days prior to plaintiff's fall,defendant not only controverts the existence of any ice, but as relevant here, negates actual andconstructive notice and thus establishes prima facie entitlement to summary judgment (Perez v Canale, 50 AD3d 437, 437[2008] [climatological data tendered by defendant and relied upon by their expert establishedprima facie entitlement to summary judgment when the same evinced that it would have beenimpossible for there to have been an icy condition in the area of plaintiff's fall]; Bonney v City of New York, 41 AD3d404 [2007]).
Any contention that the meteorologist's opinion was speculative is meritless since it wasbased on facts both in the record and personally known to him, e.g., the climatological reports(see Cassano v Hagstrom, 5 NY2d 643, 646 [1959]). The meteorologist's opinion was notwrought with bare allegations or conclusions, factually unsupported by the evidence and notpersonally known to him, such that it should have been disregarded (Amatulli v Delhi Constr.Corp., 77 NY2d 525, 533 [1991]; Wright v New York City Hous. Auth., 208 AD2d327, 331 [1995]). That the meteorologist did not review and comment on some of the evidenceoffered by the plaintiff, namely her testimony and a photograph of the condition does not altermy holding because his opinion is undergirded by the aforementioned climatological reports(Perez at 437). The majority's reliance on Neidert v Austin S. Edgar, Inc. (204AD2d 1030 [1994]) is misplaced, since in that case the record indicates that the meteorologistopined "[b]ased upon his understanding of those general [weather] conditions" (id. at1031), rather than based upon admissible climatological reports, as is the case here.
Additionally, any contention that defendant failed to negate constructive notice is similarlyunavailing. Because defendant tendered climatological evidence negating the existence of the icycondition alleged, it was not necessary, as concluded by the motion court, to also establish theabsence of constructive notice. Indeed under these circumstances, where the salient argument isthat the condition alleged did not exist, the absence of any notice is necessarily inferred.Nevertheless, plaintiff's deposition testimony, tendered by the defendant, wherein she testified tonot having seen the icy condition until after she fell, establishes the absence of constructivenotice as a matter of law (Pomahac vTrizecHahn 1065 Ave. of Ams., LLC, 65 AD3d 462, 467-468 [2009]; Anderson vCentral Val. Realty Co., 300 AD2d 422, 422-423 [2002], lv denied 99 NY2d 509[2003]; McDuffie v Fleet Fin. Group, 269 AD2d 575 [2000]; Scirica v Ariola PastryShop, 171 AD2d 859 [1991]).
Defendant having demonstrated prima facie entitlement to summary judgment, it thenbecame incumbent upon plaintiff to raise a triable issue of fact by establishing the existence ofthe condition alleged and that defendant had prior notice of the same. While plaintiff's evidenceestablished the existence of the icy condition, she failed to establish that defendant had anynotice. Certainly nothing offered or argued by plaintiff establishes constructive notice. Moreover,contrary to her assertion, neither the photograph depicting the icy condition nor her and herboyfriend's affidavits describing the patch as hard, dry and one inch thick, mere descriptions ofthe condition of the ice and not its duration, are sufficient to raise an issue of fact as toconstructive notice.
It is settled law that the mere presence of ice is insufficient to establish constructive notice ofthe same (Lenti at 289; Steo at 420-421). Moreover, neither the condition norappearance of an icy condition, by itself, is dispositive on the issue of notice (Corsaro v Stop& Shop, 287 AD2d 678 [2001] [brown and muddy ice, standing alone, insufficient toestablish constructive notice]). In fact, the very same cases plaintiff cites in support of hercontention that the description and condition of an icy condition is dispositive on the issue ofconstructive notice demonstrate the opposite. For example, in Gonzalez v American Oil Co. (42 AD3d 253 [2007]), the conditionof the ice, namely large, dry, hard, and transparent, was not dispositive on the issue ofconstructive notice. Instead, notice was established and summary judgment denied because theice in that case was covered with snow which climatological records showed had fallen no lessthan three hours prior to plaintiff's fall (id.). Thus, we concluded that under thosecircumstances the ice had existed for at least three hours and that defendant had constructivenotice of it (id.). Scott vRedl (43 AD3d 1031 [2007]), another case cited by the plaintiff, is also at odds withplaintiff's assertion, since in that case constructive notice was premised not on the condition orappearance of the ice but on "an affidavit from an expert meteorologist who, after analyzing theweather conditions on the day of the accident and on the days preceding [it], concluded that theice upon which the plaintiff allegedly slipped would have formed no later than [*6]4:00 p.m. on the day before the accident, or 18� hours earlier"(id. at 1033). Similarly, the litany of cases cited by the majority does not alter theabove-cited and well-settled law and instead supports my conclusion. For example, in Ralat vNew York City Hous. Auth. (265 AD2d 185 [1999]), the condition of the ice was not, as themajority represents, dispositive of the issue of notice. Instead, we held that plaintiff establishedconstructive notice because "[witnesses] also stated that the icy 'problem' on the sidewalkexisted for at least a week prior to plaintiff's accident . . . These first-handobservations of an icy condition in existence well prior to plaintiff's accident, in additionto the weather data establishing residual accumulation from earlier storms, constitute sufficientevidence from which a jury could infer that plaintiff's fall was caused by the pre-existing ice, andnot the light snowfall on the day of the accident" (id. at 186 [emphasis added]). Thus, inRalat, as in Gonzalez and Scott, the condition of the ice played no salientrole in determining notice.
Plaintiff, in a final attempt at establishing constructive notice seeks to link the icy conditionto a prior storm or a period of prior precipitation. While this is of course one way to establish theorigin of an icy condition thereby establishing constructive notice (see Bernstein at 1022;Simmons at 973-974; Steo at 421; Grillo at 649), plaintiff fails to meether burden since the evidence tendered must in fact link the condition to a prior storm(id.). Here, plaintiff simply submits climatological records and merely asserts that dips inthe temperature, to below freezing, confirm the patch's existence. There is no specific attempt, byan expert or anyone else for that matter, to particularize the weather pattern from which it can beinferred that the ice upon which plaintiff fell originated from prior precipitation or a previousstorm. Here, in light of a continuously evolving weather pattern where the temperature rose wellabove freezing on several occasions, plaintiff's conclusory assertion fails to link the ice to aperiod of prior precipitation or a prior storm. Accordingly, I believe that plaintiff fails to raise anissue of fact sufficient to preclude summary judgment in defendant's favor. [Prior CaseHistory: 26 Misc 3d 1236(A), 2010 NY Slip Op 50411(U).]
Footnote 1: Color and black-and-whitecopies of the photograph were authenticated by both plaintiff and Valerie. In an affidavitsubmitted in opposition to the motion for summary judgment, plaintiff averred that thephotograph had been taken by Valerie within two hours of the subject accident and "fairly andaccurately depict[ed] the ice as it appeared at the time and location of the accident." Defendantalleges that the photograph ought to have been disregarded by the lower court in light of thesupposedly conflicting representations by Valerie regarding the provenance of the photograph.This Court ordinarily does not weigh the credibility of affiants on a motion for summaryjudgment and declines to do so here.
Footnote 2: Lenti, as well asBernstein v City of New York (69 NY2d 1020 [1987]), cited by the dissent, were alsostorm-in-progress cases in which it was incumbent on the plaintiffs to demonstrate that theyslipped on old accumulations of ice, as opposed to on freshly fallen snow, since the defendantwould not be liable if the plaintiff had fallen during a storm in progress. It is logical, in thiscontext, that a court would speak in terms of the origins of the patch of ice in question. Here, thecondition of the ice itself gives rise to an inference that it was of longstanding duration.