Opinion
No. 2022-51195 Index No. 150708/2020
12-07-2022
Leroy Porter, Plaintiff, v. Mason Avenue Holding Corp., & MDP Enterprises, Inc., Defendants.
Plaintiff is represented by John Papadopoulos Esq. of Friedman & Simon LLP Defendant Mason Ave is represented by Samantha R. Aster Esq. of Weber, Gallagher, Simpson, Stapleton Fires & Newby, LLP Defendant MDP Enterprises is represented by Jaclyn L. Dar. Conte Esq. of Devitt Spellman Barrett, LLP
Unpublished Opinion
Plaintiff is represented by John Papadopoulos Esq. of Friedman & Simon LLP
Defendant Mason Ave is represented by Samantha R. Aster Esq. of Weber, Gallagher, Simpson, Stapleton Fires & Newby, LLP
Defendant MDP Enterprises is represented by Jaclyn L. Dar. Conte Esq. of Devitt Spellman Barrett, LLP
Catherine M. DiDomenico, J.
Recitation as required by CPLR 2219(a) of the papers considered in the review of the motions referenced above.
Papers Numbered
Motion for Summary Judgment by Defendant Mason Ave (Mot. Seq. 002) 1
Motion for Summary Judgment by Defendant MDP (Mot. Seq. 003) 2
Affirmations & Affidavits in Opposition by Plaintiff 3 & 4
Affirmation in Reply by Defendant MDP 5
Affirmation in Reply by Defendant Mason Ave 6
Transcript of oral argument held on July 7, 2022 7
Procedural History / Present Motions
The above captioned "slip and fall" premises liability action was commenced with the filing of a Summons and Verified Complaint on or about May 27, 2020. The case relates to an incident which occurred on or about November 15, 2018. It is undisputed that Defendant Mason Avenue Holding Corp. ("Mason Ave.") owns the property at issue, which is located at 965 Richmond Avenue, in Staten Island, New York. Defendant MDP Enterprises ("MDP") is the snow removal contractor hired by Defendant Mason to clear snow from the subject premises.
On or about March 25, 2022, Defendant Mason Ave. filed a motion for summary judgment (Seq. No. 002), seeking an order dismissing Plaintiff's cause of action relying upon the "storm-in-progress" doctrine. On or about March 28, 2022, Defendant MDP filed a motion (Seq. No. 002) supporting Mason Ave.'s "continuing storm" argument and raising an additional argument that MDP owed no duty to the Plaintiff. Plaintiff has opposed both motions in their entity. Oral argument of the motions was held on July 7, 2022, and they were submitted for decision upon receipt of the transcript.
Applicable Law
Under common law, a property owner has a duty to maintain their property in a reasonably safe condition. See Buffalino v. XSport Fitness, 2022 NY Slip Op. 00998 (2d Dept. 2022); see also Mowla v. Baozhu Wu, 195 A.D.3d 706 (2d Dept. 2021). A property owner will be held liable for a slip and fall accident involving snow and ice on its property when they created the dangerous condition which caused the accident or had actual or constructive notice of its existence. See Anderson v. Landmark at Eastview, Inc., 129 A.D.3d 750 (2d Dept. 2015). However, under the storm-in-progress rule, a property owner, tenant in possession, or snow removal contractor will not be held responsible for accidents caused by snow or ice that accumulates during a storm until an adequate period of time has passed following the cessation of the storm to allow an opportunity to ameliorate the hazards caused by the storm. See Henenlotter v. Union Free Sch. Dist. No. 23, 2022 NY Slip Op 06116 (2d Dept. 2022). If said landowner elects to begin the snow removal process during the continuing storm it must do so with reasonable care, or it could be held liable for creating a hazard or exacerbating the hazardous condition. See Petrocelli v. Marrelli Dev. Corp., 31 A.D 3d 623 (2d Dept. 2006). The mere failure of a property owner to remove all of the snow and ice, without more, does not establish that the risk of harm was increased. See Aronov v. St. Vincent's House. Dev. Fund. Co., Inc. 145 A.D.3d 648 (2d Dept. 2016). The question of whether a reasonable time has passed may be decided by the court as a matter of law, based upon the circumstances of the case. See Acocal v. City of Yonkers, 179 A.D.3d 630 (2d Dept. 2020).
Decision
All parties agree that a "snow event" took place on November 15, 2018, and that the time of the incident at issue was between 6:00 PM and 6:30 P.M. The site of the accident is best described a "strip mall" that contains a ShopRite store along with fifteen other commercial tenants. Plaintiff traveled to the strip mall to purchase a bottle of wine from the liquor store. After making his purchase Plaintiff exited the liquor store, traveled approximately four to five feet along a raised walkway, and allegedly slipped and fell at a dip in the walkway that led down into the parking lot. Plaintiff testified that he wasn't sure exactly where he was when he fell, but that when he landed, both of his feet were in the parking lot. Plaintiff further testified that the weather was "misting" at the time of the accident, that the temperature was about 30 degrees, and that two to three inches of snow were on the ground. Finally, Plaintiff testified that he didn't see anyone shoveling or plowing at the time of the incident and that the snow on the ground was undisturbed.
In support of their motions for summary judgment, Defendants argue that they had no obligation to begin cleaning the snow and ice from the parking lot as the storm that created the condition had not ended. Defendants submit the Expert Affidavit of a Senior Forensic and Forecast Meteorologist, Steven Roberts, CCM. This Expert Report is supported by certified meteorological data from the date at issue. Mr. Roberts states that he reviewed and interpreted the official National Oceanic and Atmospheric weather records from November 15, 2018, and concluded that (1) there was no snow or ice present at the start of the day and that (2) the inclement weather began at 12:45 p.m. and continued until approximately 8:40 p.m. More specifically, Mr. Roberts indicates that it snowed from 12:45 to 4:00 p.m. and then the precipitation changed into a wintery mix of snow, sleet, freezing rain and rain from 4 p.m. to 8:40 p.m. Mr. Roberts concludes, to a reasonable degree of meteorological certainty, that the storm was "ongoing" at the time of the incident. Defendants further argue that no snow removal efforts had taken place in the relevant area where the Plaintiff fell before the accident occurred. Accordingly, they were not required to affirmatively establish the reasonableness of any such undertaking as a component of its prima facie burden. See Colon v. New York City Tr. Auth., 201 A.D.3d 867 (2d Dept. 2022).
After considering the Defendants respective motions the Court finds that they have met their initial burden of establishing a prima facie entitlement to summary judgment. The Expert Affidavit of Mr. Roberts indicates that the wintery mix of precipitation began at 12:45 p.m. (before the incident) and continued until 8:00 or 8:40 p.m. (after the incident). Thus, the storm was "in progress" at 6:00 or 6:30 p.m. when the Plaintiff slipped and fell. As the storm was continuing at the time of the incident the Defendants had no duty to being cleaning operations. See Fitzsimons v. North Shore Univ. Hosp., 205 A.D.3d 684 (2d Dept. 2022). The fact that the precipitation was not continuous snow is irrelevant as a "wintery mix" is sufficient to satisfy the storm-in-progress doctrine. See Sherman v. New York State Thruway Auth., 27 N.Y.3d 1019 (2016); see also Cohen v. A.R. Fuel Inc., 290 A.D.2d 640 (3rd Dept. 2002). A property owner is not liable for slip and fall injuries caused by "accumulated snow, rain, ice, sleet, or hail." See Solazzo v. New York City Tr. Auth., 21 A.D.3d 735 (1st Dept. 2005), affd, 6 N.Y.3d 734 (2005).
As the Defendants have met their burden of establishing an entitlement to summary judgment on the storm-in-progress doctrine, the burden shifts to the Plaintiff to raise a triable issue of fact as to whether there was a storm in progress or whether defendant created or exacerbated the naturally occurring hazardous condition by negligent snow removal efforts. See Lewis v. 311 Realty, LLC, 201 A.D.3d 591 (1st Dept. 2022); see also DeStefano v. City of New York, 41 A.D.3d 528 (2d Dept. 2007). Here Plaintiff argues that the storm had ceased by the time of the incident and thus that the storm in progress rule is inapplicable. However, according to the meteorological report provided by Defendants the storm did not cease until hours after the alleged incident. While Plaintiff may have fell during a "lull" in the storm, a lull in a continuing storm does not impose a duty to remove the accumulation of ice and snow before the storm ceases in its entirety. See Johnson v. Pawling Cent. Sch. Dist., 196 A.D.3d 686 (2d Dept. 2021); see also Fenner v. 1011 Rte. 109 Corp., 122 A.D.3d 669 (2d Dept. 2014). Plaintiff has offered no evidence to refute the meteorological report which indicates that the storm was ongoing at the time of the incident. While counsel makes certain observations regarding alleged "inconsistencies" in the supporting meteorological data, he has not offered his own expert report to contradict Mr. Robert's expert analysis of that data. Interpretation of meteorological data is beyond the ken of an ordinary person and should be explained by an expert. See Wadsworth Condos LLC v. Dollinger Gonski & Grossman, 114 A.D.3d 487 (1st Dept. 2014).
Plaintiff's contention that an issue of fact exists as to whether Defendant MDP's snow and ice removal created or exacerbated a dangerous condition is directly refuted by his own deposition testimony that he saw no one shoveling or plowing at the time of the incident and that the snow in the area in which he fell was undisturbed. See Giron v. New York City Hous. Auth., 187 A.D.3d 603 (1st Dept. 2020). The deposition testimony of Mason Ave.'s Superintendent, Mr. Coyoy, that MDP arrived to clean the snow in the large parking lot at approximately 5:00 or 5:30 p.m., standing alone, is insufficient to establish that they cleaned the specific area where the Plaintiff fell by 6:30, especially considering the Plaintiff's testimony to the contrary. Moreover, even assuming that they did clean the area where the Plaintiff fell, there is simply no evidence, other than mere speculation, that the Defendants' did anything to make naturally occurring condition worse. Speculation and surmise are insufficient to defeat a motion for summary judgment. See Skouras v. New York City Tr. Auth., 48 A.D.3d 547 (2d Dept. 2008); see also Myrow v. City of Poughkeepsie, 3 A.D.3d 480 (2d Dept. 2004); Ross v. Lewis, 181 A.D.3d 423 (1st Dept. 2020).
The storm in progress rule provides a sufficient ground to grant both Defendant's motions. However, Defendant MDP also argues that they owed no legal duty to Plaintiff, a claim only briefly discussed in Plaintiff's opposition. MDP contracted with Mason Ave. to perform snow removal services. A limited contractual undertaking to provide snow removal generally does not render the snow removal contractor liable in tort for the personal injuries of third parties. See Canciani v. Stop & Shop Supermarket Co., LLC, 203 A.D.3d 1011 (2d Dept. 2022). There are three exceptions to this rule: (1) where the contracting party, in failing to exercise due care, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the performance of the contracting party's duties or (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely. See Espinal v. Melville Snow Contrs., 98 N.Y.2d 136 (2002). Exceptions two and three clearly do not apply, especially considering Plaintiff's allegations that Mason Avenue's agents historically participated in snow removal. Therefore, the only exception that could apply would be if MDP's attempts at snow removal launched the instrument of harm, or in other words, exacerbated the naturally occurring hazardous condition. See Cohen v. City of New York, 209 A.D.3d 830 (2d Dept. 2022). As discussed above, Plaintiff fails to offer any evidence that MDP cleaned the specific area where the accident occurred. Even assuming they did, Plaintiff fails to allege that MDP undertook any actions that made the naturally occurring hazard worse. See Santos v. Deanco Servs., Inc., 142 A.D.3d 137 (2d Dept. 2016). Speculation and conjecture are insufficient to defeat a motion for summary judgment. See Crosthwaite v. Acadia Realty Trust, 62 A.D.3d 838 (2d Dept. 2009).
As Defendants have met their initial burden of establishing their entitlement to summary judgment and Plaintiff has failed to raise a triable issue of fact in opposition, Defendants' motions are hereby granted in their entity. See Rosario v. New York City Hous. Auth., 173 A.D.3d 594 (1st Dept. 2019). This constitutes the Decision and Order of this Court in relation to motion sequence numbers 002 and 003. Any issue raised in either motion not specifically addressed herein is hereby denied. Matter is dismissed with prejudice.