Opinion
9425/05.
Decided April 11, 2006.
Upon the foregoing papers in this action by plaintiffs Michael H. Acosta (Acosta) and Liza Acosta (collectively, the Acostas) to recover damages for personal injuries alleged sustained by Acosta, the Acostas cross-move for summary judgment in their favor on the issue of liability pursuant to General Municipal Law § 205-e. (The motion by defendant Trinity Lutheran Church for summary judgment dismissing the Acostas' complaint as against it was previously denied based upon the insufficiency of its supporting documentation to defeat the Acostas' claims. Specifically, the affidavit of Denise Salvesen [Salvesen], Trinity Lutheran Church's secretary, was found to be incompetent as she lacked personal knowledge of the facts regarding the pertinent issues.)
On March 7, 2005, at approximately 2:00 a.m., Acosta, a New York City police officer, and his partner, Angel Vasquez (Vasquez), arrived at 45th Street, in Brooklyn, New York after they had received a call that a grand larceny of an automobile was in progress in that area. When the suspect began to run away from the vehicle, Acosta and Vasquez began chasing him on foot. While chasing the suspect, Acosta allegedly slipped on ice that was present on the sidewalk abutting the premises owned by Trinity Lutheran Church, which is located at 411 46th Street. Acosta sustained injuries as a result of his fall.
Consequently, on May 13, 2005, the Acostas commenced this action against Trinity Lutheran Church, alleging claims under General Municipal Law § 205-e and General Obligations Law § 11-106. Liza Acosta, Acosta's wife, asserts a claim for loss of consortium. Following the completion of discovery and the filing of a note of issue, the Acostas brought this cross motion for summary judgment with respect to their General Municipal Law § 205-e claim against Trinity Lutheran Church.
In addressing the Acostas' cross motion, the court notes that General Municipal Law § 205-e provides that a police officer has a right of action where the "neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state . . . or city governments" "directly or indirectly" causes the police officer's injury or death during the discharge of his or duties. In order "[t]o make out a claim under section 205-e, a plaintiff must [1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the [police officer] was injured, and [3] set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm'" ( Williams v. City of New York, 2 NY3d 352, 363, quoting Giuffrida v. Citibank Corp., 100 NY2d 72, 79).
Here, Acosta relies upon an alleged violation by Trinity Lutheran Church of Administrative Code § 16-123, which provides:
"Removal of snow, ice and dirt from sidewalks; property owners' duties.
a. Every owner . . . having charge of any building . . . in the city, abutting upon any street where the sidewalk is paved shall, within four hours after the snow ceases to fall, remove the snow or ice or dirt or other material from the sidewalk and gutter, the time between nine post meridian and seven ante meridian not being included in the above period of four hours . . .
b. In case the snow and ice on the sidewalk shall be frozen so hard that it cannot be removed without injury to the pavement, the owner . . . having charge of any building . . . may, within the time specified in the preceding subdivision cause the sidewalk abutting on such premises to be strewed with ashes, sand, sawdust, or some similar suitable material, and shall as soon thereafter as the weather shall permit, thoroughly clean such sidewalks."
Acosta, at his deposition, described the manner in which he was injured (Acosta's Dep. Tr. at 29-32). He testified how he slipped and fell on the ground (Acosta's Dep. Tr. at 31-32). He explained that when his fellow police officers arrived at the scene, he observed thick ice on the sidewalk where he fell (Acosta's Dep. Tr. at 34-36). He stated that he realized he was sitting on the ice and that ice was all around him on the sidewalk (Acosta's Dep. Tr. at 37).
Acosta has also submitted the affidavit of Vasquez. Vasquez asserts, in his affidavit, that Acosta slipped and fell on an icy sidewalk in front of the church. He states that over the next several minutes, as other members of the police department and EMS arrived at the accident scene, he had the opportunity to examine the sidewalk in front of the church where Acosta slipped and fell. Vasquez attests that "[t]he entirety of the sidewalk was covered with a layer of ice," and he "saw no indication that the sidewalk had been shoveled, sanded or salted."
In addition, Acosta has submitted the expert affidavit of William Sherman, a meteorologist. William Sherman reviewed weather data recorded in the vicinity of the site of the accident. In order to determine the prevailing meteorological pattern for March 7, 2005, he studied official copies of National Weather Service (NWS) hourly weather observations, special weather statements, snowfall reports, cooperative reporting station data, climate summaries, and the March 2005 issue of the NWS publication "Storm Data and Unusual Weather Phenomenon." His analysis revealed that the last measurable snowfall prior to March 7, 2005 occurred on February 28-March 1, 2005, when approximately six inches of snow fell. He concludes, with a reasonable degree of meteorological certainty, that on March 7, 2005, at 2:00 A.M., approximately two inches of snow and ice was present on exposed, untreated, undisturbed outdoor surfaces in the vicinity of the accident site.
Based upon this showing that the last snowfall had occurred on March 1, 2005, six days prior to Acosta's March 7, 2005 accident, and Acosta's deposition testimony and Vasquez's affidavit regarding the presence of a layer of ice where Acosta fell, the Acostas have set forth facts from which it may be inferred that Trinity Lutheran Church's negligence in violating Administrative Code § 16-123 directly or indirectly caused his injuries ( see Williams, 2 NY3d at 363). By such establishment of a practical or reasonable connection between the violation of Administrative Code § 16-123 and Acosta's injuries, Acosta has made a prima facie showing of his entitlement to judgment as a matter of law on his General Municipal Law § 205-e claim ( see Hoey v. Kuchler, 249 AD2d 365, 368). The burden, therefore, shifted to Trinity Lutheran Church to make an evidentiary showing to raise a triable issue of fact ( see Zuckerman v. City of New York, 49 NY2d 557, 562; Duprey v. Drake, 182 AD2d 1015, 1016).
In opposition to the Acostas' cross motion, Trinity Lutheran Church relies upon Acosta's deposition testimony that in order to get to the sidewalk on 45th Street, he did not have to climb over any accumulated snow mounds or drifts and that he did not remember any snow accumulations anywhere on the 45th Street side of the sidewalk (Acosta's Dep. Tr. at 29-30). Acosta's deposition testimony, however, does not show that no ice remained on the premises; it does not contradict his testimony that he observed that he was sitting in ice following his fall (Acosta's Dep. Tr. at 37).
Trinity Lutheran Church also argues that the expert opinion of William Sherman is speculative and cannot be used by the Acostas in support of their cross motion. Such argument is rejected. William Sherman details the weather reports and the data relied upon by him. Moreover, Trinity Lutheran Church has not submitted any evidence to contradict William Sherman's assertions as to the date of the last snowfall to raise a triable issue of fact.
Trinity Lutheran Church, in support of its contention that there was no snow or ice on the sidewalk abutting its premises on March 7, 2005, has submitted the deposition testimony of Salvesen (who, as noted above, was its secretary). At her deposition, Salvesen testified that in March 2005, Trinity Lutheran Church employed a custodian named Eusebio Huesea (the custodian) (Salvesen Dep. Tr. at 8). Salvesen stated that the custodian worked from 8:00 A.M. to 5:00 P.M., and that on snow days, he started at 6:30 A.M. and would stay until 6:30 to 7:00 P.M. (Salvesen Dep. Tr. at 11). She testified that it was the custodian's custom and practice to shovel the snow and, if it were icy, to put down sodium chloride or ice melt on the sidewalks (Salvesen Dep. Tr. at 11).
Salvesen, however, had also testified at her deposition that she did not know whether the custodian had put down sodium chloride on the sidewalk on March 5, 2005 (Salvesen Dep. Tr. at 12). She further testified that she did not know what the conditions were of the sidewalks surrounding the church at 2:00 A.M. on March 7, 2005 (Salvesen Dep. Tr. at 13). She stated that she did not know how much snow or ice was on the ground anywhere around the church on March 6, 2005, when she went to Sunday services (Salvesen Dep. Tr. at 16).
Trinity Lutheran Church has also submitted a sworn affidavit by Salvesen. Salvesen, in her affidavit, asserts that as part of her job duties, she was familiar with the normal custom and practice of the custodians because she supervised them when the pastor was not present. She states that when it snowed, the custodian shoveled the sidewalks, and that, in addition, he used ice melt on the sidewalks to melt the ice. Salvesen avers that she personally witnessed the custodian on various occasions around the date of Acosta's accident perform the aforementioned tasks. Salvesen asserts that on March 6, 2005, she attended Sunday worship at Trinity Lutheran Church. She states that "whenever [she] attended services, there was always a wide, clear pedestrian path on both sidewalks abutting Trinity Lutheran Church that w[as] clear of snow and ice." Salvesen, however, concedes that she "do[es] not have a specific recollection of attending services on Sunday, March 6, 2005."
Thus, Salvesen lacked personal knowledge of the condition of the sidewalk during the relevant time period ( see Star City Sportwear v. Yasuda Fire Marine Ins. Co. of Am., 1 AD3d 58, 62, affd 2 NY3d 789). Salvesen's deposition testimony and affidavit also do not provide evidentiary proof that the custodian had shoveled the snow or had put down sodium chloride or ice melt on the date and time at issue. Her deposition testimony and affidavit are based only upon the custodian's practice, if followed, and are, therefore, inherently speculative, i.e., they are based only upon what she assumes should have happened ( see Webb v. Tire and Brake Distributor, 13 AD3d 835, 837; Connor v. Tee Bar Corp., 302 AD2d 729, 730-731). Consequently, Salvesen's deposition testimony and affidavit lack probative value ( see Webb, 13 AD3d at 837; Connor; 302 AD2d at 730-731).
"Something more than speculation is needed to defeat a motion for summary judgment" ( Steinborn v. Himmel, 9 AD3d 531, 535, quoting Oliveira v. County of Broome, 5 AD3d 898, 899; see also Rygel v. 8750 Bay Parkway, LLC, 16 AD3d 572, 573). Here, Trinity Lutheran Church did not produce a witness with first-hand personal knowledge regarding the snow removal procedures that had taken place immediately prior to Acosta's accident. It has not introduced any evidentiary proof to show that an icy condition did not exist on the sidewalk outside of the church. Trinity Lutheran Church relies only upon the speculation of Salvesen, which is not based upon her personal knowledge of what occurred. Such proof is insufficient to create a material question of fact ( see CPLR 3212 [b]; Webb, 13 AD3d at 838; Shipman v. Mount Sinai Hosp., 290 AD2d 294, 295).
Trinity Lutheran Church further asserts that the duties which Administrative Code § 16-123 imposes are not applicable between 9:00 P.M. and 7:00 A.M. It contends that there is no proof that an icy condition existed at any time before 9:00 P.M. on the evening of March 6, 2005. This contention is devoid of merit. As discussed above, Trinity Lutheran Church has not offered any probative evidence of snow or ice removal at any time prior to Acosta's accident. Moreover, the Acostas have shown, by their aforementioned submissions, that there was no measurable snowfall during the statutorily-excepted period and that an icy condition remained present on the subject sidewalk, apparently caused by a snowfall which occurred six days before the plaintiff's fall.
Trinity Lutheran Church, in opposition to the Acostas' cross motion, also relies upon an entry in an uncertified emergency room record from Lutheran Medical Center. This record regarding Acosta, in pertinent part, states:
"I fell down while running' . . . Healthy young NYPD personnel while chasing a suspect accidentally tripped down to the ground as his right foot struck to [sic] an obstacle."
Trinity Lutheran Church contends that this is an admission by Acosta that he tripped on an obstacle, as opposed to slipping on ice, and that this raises a triable issue of fact sufficient to deny the Acostas' cross motion. Trinity Lutheran Church's contention lacks merit. "An entry in a hospital record comes within the statutory business records rule, . . . CPLR 4518 (subd. [a]), only if it is relevant to diagnosis or treatment of the patient's ailment" ( Del Toro v. Carroll, 33 AD2d 160, 165). "If it is not so relevant, the entry cannot be said to have been made in the regular course of business of the hospital and for the purpose of assisting it in carrying on that business" ( id.).
Thus, a statement by a patient detailing the circumstances of an accident, where it is immaterial to and was never intended to be relied upon in the treatment of the patient, and "which serve[s] no medical purpose, may not be regarded as having been made in the regular course of the hospital's business" ( Williams v. Alexander, 309 NY 283, 288; see also Del Toro, 33 AD2d at 165). This is because "[t]here is no need in [such a] case for the physician to exercise care in obtaining and recording the information or to question the version, whatever it might be, that is given to him [or her]" ( Williams, 309 NY at 288).
Here, it was the business of Lutheran Medical Center to diagnosis Acosta's condition and to treat him for his injuries, not to record a statement describing the cause of the accident in which his injuries were sustained ( see id. at 288). Trinity Lutheran Church fails to demonstrate how Acosta's slipping on ice, as opposed to tripping on something, could have affected the emergency room physician's diagnosis or treatment of Acosta.
Trinity Lutheran Church's reliance upon Eitner v. 119 West 71st Street Owners Corp. ( 253 AD2d 641, 642), in support of its argument that Lutheran Medical Center's emergency room record raises a triable issue of fact, is misplaced. In that case, the entries in the hospital record were relevant to the diagnosis and treatment of the patient's ailment ( see id.). In the case at bar, in contrast, the entry in the Lutheran Medical Center emergency room record at issue does not relate to the manner of the accident and was not germane to Acosta's diagnosis and treatment. Therefore, Acosta's Lutheran Medical Center emergency room record is not admissible under the business records exception to the hearsay rule ( see CPLR 4518) and constitutes inadmissible hearsay ( see Williams, 309 NY at 287; Cuevas v. Alexander's, Inc., 23 AD3d 428, 429; Rivera v. City of New York, 293 AD2d 383, 383; Dickson v. Queens Long Island Medical Group, P.C., 289 AD2d 193, 193; Francis v. Francis, 262 AD2d 1065, 1065; Butler v. Dihyem Food Corp., 180 AD2d 404, 405).
Lutheran Medical Center's emergency room record entry is also not admissible as an admission by Acosta. Trinity Lutheran Church has not established that Acosta was the source of the information recorded and the indicia of reliability required to support an admission are absent ( see Van Dina v. City of New York, 292 AD2d 267, 268; Musard v. Mercy Hosp. of Buffalo, 249 AD2d 958, 959-960; Echeverria v. City of New York, 166 AD2d 409, 410).
In any event, the statement attributed to Acosta, i.e., that he tripped as his foot struck an obstacle, is not blatantly inconsistent with or diametrically opposed to his assertion that he slipped after striking an icy patch ( compare Eitner, 253 AD2d at 642). It also does not raise a question of fact as to whether the claimed violation of Administrative Code § 16-123 by Trinity Lutheran Church was the proximate cause of his injuries.
Thus, since Trinity Lutheran Church has failed to raise a triable issue of fact, Acosta is entitled to summary judgment in his favor on the issue of liability with respect to his General Municipal Law § 205-e claim. The Acostas' cross motion must, therefore, be granted ( see CPLR 3212 [b]).
Accordingly, the Acostas' cross motion for summary judgment in their favor on the issue of liability pursuant to General Municipal Law § 205-e is granted.
This constitutes the decision and order of the court.