Opinion
3002/07.
Decided June 9, 2008.
Plaintiff's counsel is Louis C. Fiabane, Esq.
Defendant's counsel is Lester Schwab Katz Dwyer, LLP (by Peter L. Urreta).
By notice of motion filed on March 10, 2008, under motion sequence number 5, the defendant, Volunteers of America-Greater New York, Inc. moves for summary judgment dismissing the complaint pursuant to CPLR § 3212. Plaintiff opposes the motion. On May 30, 2008, at Part 52 of this court, the parties orally argued the motion and the court issued a decision granting the defendant's application. This decision and order more fully reflects the court's reasoning for granting the application and replaces the aforementioned order.
THE PLEADINGS
On January 25, 2007, plaintiff commenced the instant action by filing a summons and verified complaint in the Kings County Clerk's office (KCC). Issue was joined by plaintiff's verified answer filed with the KCC on March 15, 2007. On November 20, 2007, plaintiff filed a note of issue and certificate of readiness. Defendant is a New York Not-for-Profit Corporation which owns and operates a residential shelter located at One LaGuardia Road, Chester, New York (hereinafter the subject premise). Plaintiff 's verified complaint and verified bill of particulars alleges personal injuries sustained as a result of a slip and fall that occurred at the subject premise at approximately 6:00 am, on February 6, 2004, due to defendant's negligence. Plaintiff alleges that defendant caused or created or had actual or constructive notice of a defective or dangerous condition, namely, the presence of snow and ice on the subject premises which they controlled. Defendant's verified answer consists of general denials and twelve affirmative defenses.
DEFENDANT'S MOTION PAPERS
Defendant's motion papers consists of an affirmation of counsel and seven annexed exhibits. Exhibit A is the summons and verified complaint. Exhibit B is defendant's answer. Exhibit C is plaintiff's verified bill of particulars. Exhibit D is the entire transcript of plaintiff's deposition taken on October 29, 2007. Exhibit E is an affidavit of an employee of the defendant. Exhibit F consists of an affidavit of William Sherman, a forensic meteorologist, and a meteorological report that he prepared for the defendant. Exhibit G is an order of Justice Larry Martin dated January 10, 2008 that enlarged the defendant's time to file a summary judgment motion to March 10, 2008.
PLAINTIFF'S OPPOSITION PAPERS
Plaintiff's opposition papers consist of his attorney's affirmation and three exhibits. Exhibit A is a copy of the same order of Justice Martin attached as exhibit G to defendant's motion. Exhibit B is a page from a New York State Unified Court System entitled "ECOURTS" which provides information on the instant motion sequence. Exhibit C are portions of plaintiff's deposition taken on October 29, 2007.
LAW AND APPLICATION
Following joinder of issue and discovery, defendant has moved for summary judgment dismissing the complaint contending that plaintiff's accident occurred during or immediately following an ongoing winter storm. Plaintiff opposes the motion contending that defendant's motion is untimely and that there are issues of fact as to whether the defendant was negligent.
The court records demonstrate that on March 10, 2008, defendant filed the instant motion with the Kings County Supreme Court Motion Support Unit. Inasmuch as the date that the defendant filed the instant motion was within the time frame allowed by the referenced order of Justice Martin, the instant motion is timely.
Turning to the merits of the motion the "storm in progress rule" provides that a party in possession or control of real property has a reasonable period of time after the cessation of a storm in which to take protective measures to correct storm-created hazardous ice and snow conditions ( Convertini v. Stewart's Ice Cream Co., Inc., 295 AD2d 782 at 783 [3rd Dept 2002] citing Fusco v. Stewart's Ice Cream Co., Inc. 203 AD2d 667 at 668 [3rd Dept 1994].
In support of its motion for summary judgment, defendant submitted, inter alia, plaintiff's deposition testimony, the affidavit of William Sherman, a meteorologist, and Sherman's meteorological report. Plaintiff testified, in pertinent part, that on February 6, 2004, he was a resident at the B building of defendant's shelter located at the northwest side of the building at 1 Laguardia Road Chester, New York. At approximately 6:00 am, as he walked along a path from his residence toward the mess hall, he slipped and fell on uncleared snow and ice on defendant's property. It was about 20 to 25 degrees Fahrenheit at the time of his fall and it was snowing lightly at the time.
William Sherman's affidavit alleges that he is forensic meteorologist, that he reviewed pertinent weather data and that he made certain conclusions derived from same. Sherman offered the following facts. On February 6, 2004, an ongoing snowfall began at around 3:30 am eastern standard time in the area of 1 Laguardia Road Chester, New York At 6:00 am, snow was falling, 2 inches of snow had already fallen, and the temperature was near 24-25 degrees Fahrenheit. Sherman further indicated, among other things, that approximately 0.99 inch of liquid precipitation, which included approximately 3.5 inches of snow and ice fell on that day with the high temperature being near 34 degrees and the low temperature being near 23 degrees Fahrenheit.
The defendants established their entitlement to summary judgment dismissing the cause of action sounding in negligence by demonstrating that they did not create the alleged hazardous condition, and that there was ongoing precipitation at the time of the plaintiff's accident (Fahey v. Serota , 23 AD3d 335 [2nd Dept 2005] citing Trainor v. Dayton Seaside Assoc. No. 3, 282 AD2d 524; see also DeVito v. Harrison House Associates , 41 AD3d 420 at 421 [2nd Dept 2007]; and Parker v. Rust Plant Servs., Inc ., 9 AD3d 671 [3rd Dept 2004]. Defendant has therefore made a prima facie showing of entitlement to judgment as a matter of law ( Alvarez v. Prospect Hosp., 68 NY2d 320; see also ( DeVito v. Harrison House Associates, 41 AD3d supra at 421 citing Small v. Coney Is. Site 4A-1 Houses , 28 AD3d 741 [2nd Dept 2006]).
The burden therefore shifts to the plaintiff to show that the accident was caused by ice that existed prior to the storm rather than precipitation in progress ( Mosquera v. Orin , 48 AD3d 935 [3rd Dept 2008], citing Martin v. Wagner , 30 AD3d 733 [3rd Dept. 2006]. In addition, liability will not be imposed unless defendant had actual or constructive notice of the hazard and a general awareness of the existence of a potentially dangerous condition is not sufficient to constitute constructive notice ( Mosquera v. Orin, 48 AD3d supra at 936 [3rd Dept 2008] citing Lyons v. Cold Brook Cr. Realty Corp., 268 AD2d 659 at 660 [3rd Dept 2000])
In opposition to defendant's motion, plaintiff's submit an affirmation of his counsel and excerpts of his deposition testimony. Plaintiff contends that defendant did not demonstrate the applicability of the "storm in progress rule" because the fact that it was snowing when plaintiff fell does not mean that a snow and ice storm was in progress. The court finds this to be a misunderstanding of the principle. Plaintiff further opines that he fell on old ice that accumulated due to prior precipitation. . In support of this contention, he highlights parts of the meteorological report of defendant's expert. The expert, however, does not contend or conclude that the alleged icy condition at the time of plaintiff's fall was caused by precipitation unrelated to the precipitation in progress that day. Apart from these contentions, plaintiff offers merely conclusory speculation that the icy condition in the area in which he fell was old ice. Plaintiff's opposition is therefore insufficient to raise a genuine triable issue of fact. Defendant's motion to dismiss the complaint is granted.
The foregoing constitutes the decision and order of this court.