Opinion
No. 2020-09599 Index No. 515798/15
12-13-2023
Teresa Cardona, plaintiff-appellant-respondent, v. City of New York, defendant-appellant, Olga Naranjo, respondent.
Zwirn & Saulino, P.C., Brooklyn, NY (Warren Zwirn, Klevis Peshtani, and Julie T. Mark of counsel), for plaintiff-appellant-respondent. Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Jeremy W. Shweder and Eva L. Jerome of counsel), for defendant-appellant. Salter & Ingrao, P.C., Mineola, NY (Kevin T. Salter of counsel), for respondent.
Zwirn & Saulino, P.C., Brooklyn, NY (Warren Zwirn, Klevis Peshtani, and Julie T. Mark of counsel), for plaintiff-appellant-respondent.
Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Jeremy W. Shweder and Eva L. Jerome of counsel), for defendant-appellant.
Salter & Ingrao, P.C., Mineola, NY (Kevin T. Salter of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, and the defendant City of New York separately appeals, from an order of the Supreme Court, Kings County (Katherine A. Levine, J.), dated November 4, 2020. The order, insofar as appealed from by the plaintiff, granted the motion by the defendant Olga Naranjo for summary judgment dismissing the complaint insofar as asserted against her. The order, insofar as appealed from by the defendant City of New York, denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with one bill of costs to the defendant Olga Naranjo payable by the plaintiff, and one bill of costs to the plaintiff payable by the defendant City of New York.
The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained at approximately 10:00 a.m. on January 6, 2015, when she slipped and fell on a sheet of ice underneath accumulating snow as she descended a pedestrian ramp on a street corner in Brooklyn. Both defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. In an order dated November 4, 2020, the Supreme Court granted the motion of the defendant Olga Naranjo, and denied the motion of the defendant City of New York. The plaintiff appeals, and the City separately appeals.
The Supreme Court properly determined that the City failed to establish its prima facie entitlement to summary judgment under the storm in progress rule. The evidence submitted by the City in support of its motion, which included, among other things, a copy of the transcript of the plaintiff's deposition testimony, failed to establish that the ice upon which the plaintiff slipped and fell was the result of an ongoing storm as opposed to the accumulation of ice from prior snowfalls (see Stukes v New York City Hous. Auth., 203 A.D.3d 980; Taormina-Fucci v 100-02 Rockaway Blvd. 26, LLC, 201 A.D.3d 766, 767; Weiss v Kraus Mgt., Inc., 164 A.D.3d 1292, 1293).
Moreover, contrary to the City's contention, the evidence submitted by the City failed to establish, as a matter of law, that it lacked constructive notice of the condition (see Licari v Brookside Meadows, LLC, 214 A.D.3d 780, 781-782; Taormina-Fucci v 100-02 Rockaway Blvd. 26, LLC, 201 A.D.3d at 767), or that the ice condition was not of such a dangerous or unusual nature so as to impose a duty upon the City to remedy it (see Williams v City of New York, 214 NY 259, 264; Rodriguez v Woods, 121 A.D.3d 474, 474-475; see also Ferguson v City of New York, 201 A.D.2d 422, 423-424; Gonzalez v City of New York, 148 A.D.2d 668, 670, abrogated on other grounds by Love v State of New York, 78 N.Y.2d 540, 543).
Since the City failed to meet its initial burden as the movant, it is unnecessary to consider the sufficiency of the plaintiff's papers in opposition to the City's motion (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
The Supreme Court also properly granted Naranjo's motion for summary judgment dismissing the complaint insofar as asserted against her. "'[A]n owner... of property abutting a public sidewalk may be held liable where it undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous'" (Gibbs v Husain, 184 A.D.3d 809, 810, quoting Robles v City of New York, 56 A.D.3d 647, 647).
Here, Naranjo met her prima facie burden by submitting deposition testimony demonstrating that she did not affirmatively increase the hazard of the naturally-occurring condition. The affidavits of the plaintiff's experts submitted in opposition to the motion were speculative and conclusory, and therefore insufficient to raise a triable issue of fact (see Ali v Chaudhry, 197 A.D.3d 1084, 1086).
In light of our determination, we need not reach the plaintiff's remaining contention.
DILLON, J.P., CHAMBERS, FORD and VENTURA, JJ., concur.