Opinion
No. 30503/2010.
2013-06-6
Ernesto RAMIREZ–PEREZ, Plaintiff, v. 12422 QUEENS BLVD. LLC, New York City Management LLC, JPMorgan Chase Bank N.A., Oceanview Service Incorporated, Ocean View Service Corporation, All Counties Snow Removal Corp., Lin Enterprises, Inc., d/b/a Louis Steven Income Tax and Ira Judelson Bail Bonds, Defendants.
ROBERT J. McDONALD, J.
The following papers numbered 1 to 35 were read on three separate motions by defendants, (1) OCEANVIEW SERVICE INCORPORATED; (2) 12422 QUEENS BLVD LLC, NEW YORK CITY MANAGEMENT LLC, JPMORGAN CHASE BANK N .A; and (3) ALL COUNTIES SNOW REMOVAL CORP. for an order, pursuant to CPLR 3212, granting summary judgment in favor of said defendants and dismissing the plaintiff's verified complaint and all cross-claims:
+--------------------------------------------------------------+ ¦Papers ¦Numbered ¦ +---------------------------------------------------+----------¦ ¦Oceanview's Notice of Motion–Exhibits–Memo of Law ¦1–6 ¦ +---------------------------------------------------+----------¦ ¦Chase Defendant's Notice of Motion–Exhibits ¦7–13 ¦ +---------------------------------------------------+----------¦ ¦All Counties' Notice of Motion–Exhibits–Memo of Law¦14–18 ¦ +---------------------------------------------------+----------¦ ¦Plaintiff's Affirmation in Opposition ¦19–24 ¦ +---------------------------------------------------+----------¦ ¦Oceanview's Reply Affirmation ¦25–28 ¦ +---------------------------------------------------+----------¦ ¦Chase Defendant's Reply Affirmation ¦29–31 ¦ +---------------------------------------------------+----------¦ ¦All Counties' Reply Affirmation ¦32–35 ¦ +--------------------------------------------------------------+
This is an action for damages for personal injuries Sustained by plaintiff, Ernesto Ramirez–Perez, on February 25, 2010, when he slipped and fell on ice on a public sidewalk adjacent to premises located at 124–22 Queens Boulevard, Kew Gardens, New York. The building is owned by defendant 12422 Queens Blvd. LLC. The ground floor of the subject premises is occupied by co-defendant JPMorgan Chase Bank. As a result of his fall, the plaintiff allegedly sustained a fractured right ankle which required an open reduction.
The plaintiff initially commenced an action for negligence against 12422 Queens Blvd. LLC, JPMorgan Chase Bank N.A., Lin Enterprises Inc., d/b/a Louis Steven Income Tax Center and Ira Judelson Bail Bonds by filing a summons and verified complaint on December 8, 2010. Plaintiff filed a supplemental summons and complaint on August 5, 2011 adding defendants New York City Management, LLC, Ocean View Service Corporation and All Counties Snow Removal.
The gravamen of the complaint, as set forth in plaintiff's bill of particulars, is that the defendants were negligent in the ownership, operation, management, maintenance, repair and control of the area in failing to maintain the sidewalk in a proper and safe condition; in permitting a portion of the sidewalk to be in a dangerous condition, in failing to inspect the area, in allowing the sidewalk to become accumulated with ice and snow, in improperly clearing the sidewalk of ice and snow, in allowing the sidewalk to remain in a slippery and dangerous condition; and in failing to warn pedestrians of the unsafe condition.
Plaintiff claims that defendants had actual notice of the hazardous condition. Plaintiff also claims that the defendants had constructive notice of the hazardous condition in that the condition existed for such period of time that defendants, in the exercise of due care, should have recognized and remedied it. Plaintiff contends that the evidence shows that at the time of the accident a contract existed between Chase and All Counties pursuant to which All Counties was obligated to remove snow and ice from all areas surrounding designated Chase branches including the premises herein. In turn, All Counties entered into a subcontract with Oceanview to remove snow from sidewalks and parking lots of designated locations which included the subject premises.
Counsel for defendant, Oceanview, now moves for summary judgment dismissing the plaintiff's complaint against it on the ground that Oceanview cannot be held liable for an injury caused by a storm in progress. Counsel contends that plaintiff testified that the subject storm began the morning of February 25, 2010 and continued throughout the day. Therefore, Oceanview argues that it had no duty to clear the subject sidewalks until a reasonable time from the cessation of the storm. Counsel argues that constructive notice does not apply due to a storm in progress and as Oceanview had not yet begun clearing the subject sidewalk when plaintiff Ramirez–Perez fell, it therefore cannot be held liable for causing or creating the dangerous condition.
In support of the motion, Oceanview's counsel, Scott F. Morgan, Esq., submits his own affirmation, dated December 17, 2012; a copy of the pleadings; a copy of the Master Services Agreement between JPMorgan Chase Bank and All Counties Snow Removal dated October 8, 2008. A copy of the snow removal contract between Oceanview Service Corp and All Counties Snow Removal; a copy of the transcript of the examination before trial of plaintiff, Ernesto Ramirez Perez; and certified climatological records for the month of February 2010.
Defendants 12422 QUEENS BLVD LLC, NEW YORK CITY MANAGEMENT LLC, JPMORGAN CHASE BANK N.A. (“Chase defendants”), also move to dismiss the plaintiff's complaint on the ground that there was an ongoing storm during which time the Chase defendants did not have the obligation to remedy the slippery conditions caused by the snow, ice and rain. In addition, Chase claims that pursuant to its contract with All Counties it was the obligation of All Counties to clear the snow and ice pursuant to contract and to indemnify the Chase defendants for any claims on account of negligence.
In support of the Chase motion, counsel Jennifer L. Coviello, Esq ., submits her own affirmation as well as a copy of the pleadings; a copy of plaintiff's verified bill of particulars; a copy of the transcripts of the examinations before trial of plaintiff, of Jack Rinaldi on behalf of JPMorgan Chase, and of Philip Faicco on behalf of All Counties; a certified copy of the climatological records for the dates in question; a copy of the lease between 12422 Queens Boulevard as owner and Chase Bank as tenant; and a copy of the master services contract between Chase Bank and All Counties for snow removal.
Defendant All Counties also moves for an order pursuant to CPLR 3212 granting summary judgment and dismissing the plaintiff's complaint contending that the contract it had in place with Chase was not a comprehensive and exclusive property maintenance agreement concerning the subject property and was not meant to displace the owners duties. All Counties contends that pursuant to the terms of its contract with Chase, its obligation was limited to providing only certain snow removal services, to wit, only when the snowfall was greater than two inches. Further, All Counties argues that even if it did owe a duty of care to the plaintiff pursuant to one of the exceptions enumerated in Espinal, that the weather conditions were such that thare was a storm in progress at the time of the accident and thus they were not obligated to remove the snow and ice until a reasonable time after the cessation of the storm. All Counties supports its motion with a copy of the pleadings, transcripts of the parties examinations before trial, certified climatological records and copies of the applicable contracts.
In his examination before trial, taken on June 13, 2012, plaintiff, Ernesto Ramirez–Perez, age 45, testified that his accident occurred on Friday, February 25, 2010 at approximately 3:00 p.m. He stated that he had taken the subway from his job in Long Island City and got off at Queens Boulevard and Union Turnpike. He was going to a doctor's appointment on Queens Boulevard and was looking for the address. He stated that there was heavy freezing rain when he exited the subway and had been raining for about 1/2 hour prior to the accident. He stated that the sidewalk near Chase was icy and was covered with 6–7 inches of snow. He stated that there was no snow on the ground the day before the accident. Plaintiff stated that on the date of the accident it began snowing at about 6:00 a.m. and that it continued until it stopped snowing at about 1:00 or 1:30 p.m. and the frozen rain started about 30–40 minutes later. He stated that he was walking slowly in the middle of the sidewalk with an umbrella in one hand in front of Chase when his left foot slipped on ice and he fell backwards hitting the ground with his hip. He stated that the entire sidewalk was covered with ice and that the snow had not been removed from the sidewalk prior to his fall. However, at the time he fell he observed men coming out of a van who just began shoveling snow in front of Chase Bank. A police officer was walking and tried to help him up but he could not stand. He told the officer that he had broken his left ankle. The police officer called an ambulance and the plaintiff was transported to the emergency room at Jamaica Hospital. After being x-rayed at the emergency room he was told that he sustained two fractures in his left ankle. He was admitted to the hospital and stayed for 10 days. He had a operation on March 4, 2010 where the fractures were stabilized with plates and screws.
Jack Rinaldi, the Vice–President and facilities manager for Chase, testified at an examination before trial on June 14, 2012. He testified that with regard to snow removal, several Chase Bank locations, including the subject premises, have contracted with All Counties Snow Removal. As part of his duties he would contact All Counties when he felt snow removal was needed or when he received a call from one of the branches. He was not aware of the existence of any records indicating communications with All Counties as to the subject branch. He stated that he believed the bail bondsman, who has a first floor entrance to their second floor office was responsible for snow removal in front of his own space. He stated that with respect to Chase, the bank managers responsibilities include informing him if there is an unsafe condition on the premises.
Philip Faicco, a supervisor with All Counties Snow Removal, testified at an examination before trial on June 14, 2012. He stated that All Counties uses twelve subcontractors. He stated that he reviewed a snow report from the date of the accident and recalled that the report indicated that it had started snowing before the plaintiff's accident and stopped snowing the next day, with a total accumulation of 12 inches. Faicco stated that with respect to this Chase branch he had a subcontract with Oceanview. He stated that he received an invoice from Oceanview with respect to snow removal on February 25, 26 and 27th of 2010. He testified that All Counties monitors the snowfall and lets the subcontractors know when they will be needed to mobilize for a snow event. All Counties would tell the subcontractors when to begin their work. He stated that All Counties had a contract with Chase for snow removal for the subject premises which covered February 2010. He stated that if the bank was not shoveled appropriately that the bank would contact All Counties. He did not recall any specific discussions with any one regarding the snowstorm in February 2010. He stated that even the area leading to the upstairs tenants was serviced under the contract.
Oceanview submits that JPMorgan Chase Bank had a contract with co-defendant All Counties for removal of snow at numerous JPMorgan Chase Bank locations. All Counties then subcontracted snow removal at the subject location, 12422 Queens Boulevard to defendant Oceanview. The certified climatological records showing the weather at JFK Airport and LaGuardia Airports for February shows that on February 25, 2010, 2.9 inches of snow fell at JFK and 3.7 inches of snow fell at LaGuardia. The records show that the high temperature for the day was 38 and the low was 28. The precipitation codes indicate that in the course of the day there was rain, snow, ice pellets, heavy fog, freezing fog, mist and blowing snow. In addition, the reports indicate that there was precipitation beginning about 4:00 a.m. and lasting through midnight without a break.
The defendants claim that they cannot be held liable for the hazardous condition unless they had a reasonably sufficient time from the cessation of the precipitation to remedy the condition. Defendants assert that here, the certified records as well as plaintiff's corresponding testimony that snow fell during the day, indicates that snow and freezing rain had been falling continuously at the time of the accident. Defendants contend that since the defendants do not owe a duty until a reasonable time has passed from the cessation of the storm, the plaintiff cannot establish a prima facie case of negligence against the defendants. Further, it is argued that the defendants did not cause or create a dangerous condition as snow removal efforts had not yet begun when the plaintiff fell. Defendants assert that under the “storm in progress” doctrine, defendants Oceanview, All Counties and Chase were not required to begin clearing the sidewalk until a reasonable time from the cessation of the storm.
In addition, Chase contends that under its agreement with All Counties, All Counties or its subcontractors were required to provide snow and ice removal at the premises without notice from Chase and to sand and salt following each snow removal operation if the surfaces were icy. Further, the agreement provides that All Counties was to indemnify and hold Chase harmless for losses claimed by third parties for injuries relating to negligence caused by All Counties. Chase claims that All Counties has, to date, refused to indemnify or provide a defense for Chase in this action. Thus, Chase contends that they were not responsible to clear the snow and ice due to the storm in progress and that they discharged their duty by hiring a contractor who was responsible to provide snow and ice cleaning.
In its motion, All Counties argues that pursuant to its agreement, All Counties only agreed to provide JP Morgan with certain snow removal services. All Counties argues that the contract was not a comprehensive and exclusive property maintenance agreement concerning the subject property. Further All Counties argues that it sub-contracted the snow removal services to Oceanview. All Counties contends that there is no allegation that the plaintiff detrimentally relied on All Counties or its subcontractor to provide snow removal services. In addition, All Counties contends that as there was a storm in progress at the time of the accident and that none of the Espinal exceptions apply herein.
In opposition, Adam S. Ashe, Esq., plaintiff's counsel alleges that the defendants failed to make a prima facie case regarding the storm in progress stating that the weather records attached to the motion are not conclusive as to what the weather was like at the accident location prior to and at the time of the accident. He states that the weather conditions at a JFK and LaGuardia Airports, six miles from the accident site, are not conclusive as to the weather conditions at the site of the accident and may not reflect the weather conditions at the accident location. Counsel states that without expert evidence of the climatological conditions at the accident location at or before the time of the accident, that the weather reports are not conclusive. In addition, plaintiff points to deposition of the plaintiff in which he stated that it had been raining 30–40 minutes prior to the accident and stopped snowing at about 1–1:30 p.m. over one hour prior to the accident. Thus, plaintiff claims that the defendant has not proved, as a matter of law, that it did not have sufficient time and opportunity to remove or to treat the snow and ice on the sidewalk. Counsel claims that the fact that the sidewalk was unsafe for public travel, and more than an hour had elapsed without any one of the defendants shoveling the area, raises factual questions as to whether the defendants had a sufficient time to remedy the icy condition (citing Kaehler–Hendrix v. Johnson Controls, Inc., 58 AD3d 604 [2d Dept.2009] ).
Plaintiff also argues that a snow removal contractor may be held liable if it can be established that it written agreement wioth a landowner was “comprehensive and exclusive” and entirely displaced the landowners duty to maintain the premises in a safe condition (citing Espinal v. Melville Snow Contrs., 98 N.Y.2d 136 [2002] ). Plaintiff argues that the contracts provide a comprehensive and exclusiove obligation requiring All Counties and Oceanview to remove the snow and ice at the subject Chase premises. Counsel asserts un this regard that there are triable issues of fact as to whether All Conties and Oceanview breaced their duty under the contracts to clear the sidewalk where the plaintiff slipped.
In reply, defendants argue that the certified weather data indicating a storm in progress was confirmed by the plaintiff who testified that a storm was in progress commencing at 6:00 a.m. and continuing at the time he slipped and thus there is no discrepancy between the certified weather data and the plaintiff's own testimony. In addition, the defendants point out that the plaintiff testified that at the time of his accident there was freezing precipitation falling and not merely rain. Thus, defendant argues, that taken together plaintiff's testimony and the climatological reports clearly establish that a storm was in progress at the time of the accident and that the weather conditions at the time of the plaintiff's accident contributed to the alleged condition (cf. Abramo v. City of Mount Vernon, 103 AD3d 760 [2d Dept.2013]; Kantor v. Leisure Glen Homeowners Assn., Inc., 95 AD3d 1177 [2d Dept.2012] ).
Upon review and consideration of the defendants' motions, the plaintiff's affirmation in opposition and defendants' reply thereto, this court finds as follows:
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 N.Y.2d 557[1980] ).
As the proponent of the motion for summary judgment, defendants have the burden of establishing, prima facie, that they neither created the snow and ice condition nor had actual or constructive notice of the condition (see Meyers v. Big Six Towers, Inc., 85 AD3d 877 [2d Dept.2011] ). This burden may be established by presenting evidence that there was a storm in progress when the injured plaintiff allegedly slipped and fell (see Smith v. Christ's First Presbyt. Church of Hempstead, 93 AD3d 839 [2d Dept.2012]; Sfakianos v. Big Six Towers, Inc., 46 AD3d 665 [2d Dept.2007] ). Under the “storm in progress” rule, a property owner will not be held liable for accidents occurring as a result of the accumulation of snow or ice on its premises until an adequate period of time has passed following the cessation of the storm, within which time the owner has the opportunity to ameliorate the hazards caused by the storm (see Solazzo v. New York City Tr. Auth., 6 NY3d 734 [2005];Weinberger v. 52 Duane Assoc., LLC, 102 AD3d 618 [1st Dept.2013]; Weller v. Paul, 91 AD3d 945 [2d Dept.2012]; Mazzella v. City of New York, 72 AD3d 755 [2d Dept.2010]; Barresi v. Putnam Hosp. Ctr., 71 AD3d 811 [2d Dept.2010]; Lotenberg v. Long Is. R.R., 34 AD3d 435 [2d Dept.2006]; Coyne v. Talleyrand Partners, L.P., 22 AD3d 627 [2d Dept 2005]; Perlicz v. Redeemer Lutheran Church, 229 A.D.2d 378 [2d Dept 1996] ). Even a lull or a temporary break in a storm does not impose a duty on the owner to immediately remove the accumulation of snow (see Guntur v. Jetblue Airways Corp., 103 AD3d 485 [1st Dept.2013]; Mazzella v. City of New York, 72 AD3d 755 [2d Dept.2010]; Ioele v. Wal–Mart Stores, Inc., 290 A.D.2d 614 (2d Dept.2002).
Here, the deposition testimony of the plaintiff and the certified climatological records, which the defendants submitted in support of their motion, established prima facie, that it was snowing prior to and at the time of the occurrence without a cessation of the storm and accordingly this Court finds that the “storm in progress” rule applies here (see Sie v. Maimonides Med. Ctr., 2013 N.Y. Slip Op 3471 [2d Dept.2013]; Kinberg v. New York City Tr. Auth., 99 AD3d 583 [1st Dept.2012]; Ali v. Village of Pleasantville, 95 AD3d 796 [2d Dept.2012]; Marchese v. Skenderi, 51 AD3d 642[2d Dept.2008]; DeStefano v. City of New York, 41 AD3d 528 [2d Dept.2007]; Aguilar v. Reckson Assoc. Realty Corp., 26 AD3d 449 [2d Dept.2006]; Dowden v. Long Island R.R., 305 A.D.2d 631 [2d Dept.2003] ). Although plaintiff testified that it stopped snowing about one hour prior to the accident he stated that the precipitation changed to freezing rain at the time he fell. The climatological records indicate that there was no cessation of the storm prior to the accident. Thus, the defendants established that an adequate amount of time had not passed prior to the plaintiff's accident for it to remedy any hazardous condition resulting from the accumulation of snow and ice (see Lanos v. Cronheim, 77 AD3d 631 [2d Dept. [2010][two hour interval between the cessation of the snow storm and the occurrence of the accident was not reasonable period of time to correct the hazard caused by the storm]; Barresi v. Putnam Hosp. Ctr., 71 AD3d 811 [2d Dept.2010]; Gor v. High View Estates Owners Corp., 17 AD3d 316 [2d Dept.2005] ).
In opposition the plaintiff failed to raise a triable issue of fact as to whether the accident was caused by a slippery condition at the location where the plaintiff fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and that the defendant had actual or constructive notice of the preexisting condition (see Meyers v. Big Six Towers, Inc., 85 AD3d 877 [2d Dept.2011]; DeVito v. Harrison House Assoc., 41 AD3d 420 [2d Dept.2007]; Martin v. Wagner, 30 AD3d 733 [3d Dept.2006] ). The plaintiff failed to raise a triable issue of fact in this regard and failed to show that the storm had passed, that there was a significant lull in the storm at the time the plaintiff slipped, or that precipitation had tailed off at the time of the plaintiff's accident(see Cheung v. New York City Tr. Auth., 2013 N.Y. Slip Op 3292 [2d Dept.2013]; Smith v. Christ's First Presbyt. Church of Hempstead, 93 AD3d 839 [2d Dept.2012]; Mazzella v. City of New York, 72 AD3d 755 [2d Dept.2010]; Dancy v. New York City Hous. Auth., 23 AD3d 512 [2d Dept.2005] ).
In addition, a contractor or subcontractor's contractual undertaking to provide snow removal services generally does not give rise to a duty of care to persons not a party to the contract, absent evidence that the contractor or subcontractor assumed a comprehensive maintenance obligation entirely displacing the other party's duty to maintain the premises safely, or created or exacerbated a dangerous condition or launched a force or instrument of harm, or that the plaintiff detrimentally relied on the contractor's continued performance of its obligation (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, [2002];Gushin v. Whispering Hills Condominium I, 96 AD3d 721 [2d Dept.2012]; Schwint v. Bank St. Commons, LLC, 74 AD3d 1312 [2d Dept.2010]; Schultz v. Bridgeport & Port Jefferson Steamboat Co., 68 AD3d 970 [2d Dept.2009]; Georgotas v. Laro Maintenance Corp., 55 AD3d 666 [2d Dept.2008] ). Although the plaintiff alleges that there is a question of fact as to whether the contracts entered into with All Counties and Oceanview provided a comprehensive maintenance obligation that entirely displaced Chase's duty to maintain the premises safely, All Counties, Oceanview as well as Chase established their entitlement to summary judgment as a matter of law under the “storm in progress rule” (see Smilowitz v. GCA Serv. Group, Inc., 101 AD3d 1101 [2d Dept. [2d Dept.2012][under the “storm in progress rule,” neither a landlord nor a snow removal contractor will be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter]; Coyne v. Talleyrand Partners, L.P., 22 AD3d 627 [2d Dept.2005] [even if a duty by a snow removal contractor was shown to exist, the contractor defendants successfully established their entitlement to judgment as a matter of law under the “storm in progress” rule] ).
Accordingly, for all of the above stated reasons, it is hereby,
ORDERED, that the motion by defendants 12422 QUEENS BLVD LLC, NEW YORK CITY MANAGEMENT LLC, JPMORGAN CHASE BANK N.A., OCEANVIEW SERVICE INCORPORATED, OCEAN VIEW SERVICE CORPORATION and ALL COUNTIES SNOW REMOVAL CORP. for summary judgment dismissing the plaintiff's complaint and all cross-claims is granted.