Opinion
0102193/2005.
June 20, 2007.
JONATHAN D'AGOSTINO ASSOCIATES, P.C., ATT: EDWARD J. PAVIA, JR., ESQ., STATEN ISLAND, NY.
CORPORATION COUNSEL OF THE CITY OF NEW YORK, ATT: JENNIFER M. MARCUS, ESQ., STATEN ISLAND, NY.
RICHARD W. BABINECZ, ESQ., ATT: PETER A. HAGAN, ESQ., NEW YORK, NY.
Decision and Order
Upon the foregoing papers, the motion for summary judgment by defendant the City of New York (hereafter the "City") is granted, and the complaint and all cross claims against it are severed and dismissed.
This is an action for personal injuries allegedly sustained by plaintiff Anthony Bonventre (hereafter "plaintiff"), when he slipped and fell on ice covering a manhole cover in front of his Staten Island home on February 2, 2005.
A party may be held liable for a hazardous condition created on its premises as a result of the accumulation of snow and ice during a storm only upon a showing that it had actual or constructive notice of the dangerous condition, and that a sufficient period of time had elapsed since the cessation of the storm to take protective measures ( see Drevis v City of New York, 257 AD2d 595).
At bar, both plaintiff and the co-defendant have failed to rebut the City's demonstration that it did not receive actual notice of the alleged condition. Moreover, while constructive notice may be established by demonstrating, e.g., that a recurring dangerous condition in the area of the slip and fall was routinely left unaddressed ( see Solazzo v New York City Tr Auth, 21 AD3d 735, 736, affd 6 NY3d 734), there is no such evidence in the instant case. A general awareness that ice may form on manhole covers after a winter storm is insufficient to establish constructive notice (id., see Boucher v Watervliet Shores Assoc, 24 AD3d 855, 857).
Additionally, while the climatological records submitted by the City show that the last time it had snowed prior to plaintiff's fall was three days earlier, on January 30, 2005 ( see City's Exhibit "F"), they also show that between February 1, 2005 and February 2, 2005, the temperature fluctuated between a low of nineteen (19) degrees to a high of forty (40) degrees. Given these temperature fluctuations and the freeze/thaw cycles generated thereby, the opposing parties have failed to raise a triable issue of fact as to notice, i.e., whether this specific ice patch had existed for a sufficient length of time to provide the City with constructive notice of its presence and a reasonable time to cure, or whether the City's response to the January 30th storm had in any fashion created the alleged hazardous condition ( see Davis v City of New York, 255 AD2d 356, 357-358; Baumgartner v Prudential Ins. Co., 251 AD2d 358).
In the absence of any competent evidence to rebut the City's prima facie showing that it neither caused or created any condition which was a substantial cause of plaintiff's injury, the City is entitled to the dismissal of the complaint and all cross claims as asserted against it ( see Forman v City of White Plains, 5 AD3d 434).
Accordingly, it is hereby
ORDERED that the motion for summary judgment by defendant the City of New York is granted, and the complaint and all cross claims as against this defendant are severed and dismissed; and it is further ORDERED that the Clerk enter judgment accordingly.
The foregoing constitutes the Decision and Order of the Court.
Law Clerk to notify all parties of this Decision/Order.