Opinion
13718/09
10-04-2011
Miroslaw Sztark, Plaintiff, v. The City of New York, Defendant.
Attorney for Plaintiff: The Perecman Firm, P.L.L.C. Rudolf B. Radna, Esq. Attorney for Defendant: Michael A. Carrdozo Corporation Counsel of the City of New York Eric Murrell, Esq.
Attorney for Plaintiff:
The Perecman Firm, P.L.L.C.
Rudolf B. Radna, Esq.
Attorney for Defendant:
Michael A. Carrdozo
Corporation Counsel of the City of New York
Eric Murrell, Esq.
Phyllis Orlikoff Flug, J.
Defendant, the City of New York, moves for summary judgment, dismissing plaintiff's Complaint as asserted against it. Plaintiff, Miroslaw Sztark, separately moves for summary judgment, on the issue of liability only.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff on February 26, 2008 as a result of a trip and fall due to the presence of snow and ice on the sidewalk in front of the premises located at 59-10 59th Drive, in the County of Queens, City and State of New York.
On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate an material issues of fact from the case . . ." (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 [1985]). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).
The City has failed to establish its entitlement to judgment on the ground that it did not have notice of the snow and ice condition that allegedly caused plaintiff's accident. The City's submission of climatological data that indicate that the last significant snow fall prior to plaintiff's accident occurred on February 22, 2008, and that in the four days between that snowfall and plaintiff's accident the temperature fluctuated between 29 and 40 degrees is insufficient to establish their prima facie entitlement to judgment on the issue of constructive notice. The City has failed to submit any expert opinion that the temperature fluctuations would have precluded the existence of snow and ice related to the February 22 snowfall on the date of plaintiff's accident (See Massey v. Newburgh W. Realty, Inc., 84 AD3d 564, 566 [1st Dept. 2011]; cf. Perez v. Canale, 50 AD3d 437 [1st Dept. 2008]).
In addition, the City has failed to produce any evidence whatsoever, such as an affidavit from an employee with knowledge, to establish that it did not have actual notice, through complaints or personal inspections of the area, of the snow and ice condition complained of by plaintiff (See Massey, 84 AD3d at 567 (citing Strange v. Colgate Design Corp., 6 AD3d 422, 423 [2d Dept. 2004])). The City has likewise failed to submit any evidence in support of its contention that it cannot be held liable on the ground that the snow and ice condition that allegedly caused plaintiff's fall was not dangerous and unusual or exceptional. Indeed, the City's own witness stated that the snow and ice condition depicted in plaintiff's photographs was dangerous and the photographs themselves demonstrate that the surface of the snow and ice was bumpy and uneven (See Candelier v. City of New York, 129 AD2d 145, 148 [1st Dept. 1987]).
With respect to plaintiff's motion for summary judgment, contrary to the City's contention, plaintiff's motion, although untimely, may properly be considered by this Court (See Step-Murphy, LLC v. B & B Brothers Real Estate Corp., 60 AD3d 841, 844-45 (holding that the court should have considered defendant's untimely cross-motion for summary judgment because plaintiff had timely moved for summary judgment with respect to the same issue)).
Nevertheless, plaintiff has failed to establish his prima facie entitlement to judgment. It is well settled that "[t]here is no formula for determining liability on the basis of any ratio between the number of inches of snowfall and the time elapsed before the happening of the accident and, ordinarily . . . these factors, as well as all the other conditions, constitute a jury question" (Candelier, 129 AD2d at 150). Moreover, Plaintiff has failed to establish that he is free of any comparative negligence (See Sale v. Lee, 49 AD3d 854 [2d Dept. 2008]).
Accordingly, both motions are denied, in their entirety.
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J.S.C.