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Sow v. Fedcap Rehabilitative Servs., Inc.

Supreme Court, Appellate Division, First Department, New York.
Apr 26, 2018
160 A.D.3d 604 (N.Y. App. Div. 2018)

Opinion

6402 Index 103599/12

04-26-2018

Aminata SOW, Plaintiff–Appellant, v. FEDCAP REHABILITATIVE SERVICES, INC., Defendant–Respondent.

David Gendelman, New York (Gary E. Divis of counsel), for appellant. Eustace, Marquez, Epstein, Prezioso & Yapchanyk, New York (Maureen E. Peknic of counsel), for respondent.


David Gendelman, New York (Gary E. Divis of counsel), for appellant.

Eustace, Marquez, Epstein, Prezioso & Yapchanyk, New York (Maureen E. Peknic of counsel), for respondent.

Mazzarelli, J.P., Kapnick, Kahn, Kern, Singh, JJ.

Order, Supreme Court, New York County (Debra A. James, J.), entered February 3, 2017, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established prima facie that it was entitled to summary dismissal of the complaint by submitting certified weather records, an affidavit by a meteorologist, and plaintiff's own testimony showing that a winter storm was in progress at the time that plaintiff slipped and fell on sidewalk ice in front of its building (see Levene v. N. 2 West 67th St., Inc., 126 A.D.3d 541, 6 N.Y.S.3d 232 [1st Dept. 2015] ).

In opposition, plaintiff failed to raise a triable issue, merely speculating that she slipped on ice that had formed after previous snowfalls had melted and refrozen. Contrary to plaintiff's contention, in asserting the storm-in-progress defense, defendant was not required to submit records showing the last time it removed snow and ice from its sidewalks; that is evidence required to refute constructive notice of a hazardous condition (see e.g. Gautier v. 941 Intervale Realty LLC, 108 A.D.3d 481, 970 N.Y.S.2d 191 [1st Dept. 2013] ).


Summaries of

Sow v. Fedcap Rehabilitative Servs., Inc.

Supreme Court, Appellate Division, First Department, New York.
Apr 26, 2018
160 A.D.3d 604 (N.Y. App. Div. 2018)
Case details for

Sow v. Fedcap Rehabilitative Servs., Inc.

Case Details

Full title:Aminata SOW, Plaintiff–Appellant, v. FEDCAP REHABILITATIVE SERVICES, INC.…

Court:Supreme Court, Appellate Division, First Department, New York.

Date published: Apr 26, 2018

Citations

160 A.D.3d 604 (N.Y. App. Div. 2018)
160 A.D.3d 604
2018 N.Y. Slip Op. 2909

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