ASSAF v. CITY OF NEW YORK

Full title: YOLLA ASSAF, Plaintiff, v. THE CITY OF NEW YORK and THE UNITED NATIONS…

Court: Supreme Court of the State of New York, New York County

Date published: Aug 16, 2010

2010 N.Y. Slip Op. 32189 (N.Y. Sup. Ct. 2010)

2010 N.Y. Slip Op. 51581

Opinion

110286/08.

August 16, 2010.

Barry S. Bernstein, Esq., Livoti, Bernstein, et al, New York, NY, for plaintiff.

Leon Kowalski, Esq., Law Offices of Edward Garfinkel, Esq., Brooklyn, NY, for defendants UNDC and JLL.

Andrew Lucas, ACC, Michael A. Cardozo, Corporation Counsel, New York, NY, for defendant City.

DECISION ORDER

BARBARA JAFFE, J.S.C.:

By notice of motion dated April 27, 2010, defendant City moves pursuant to CPLR 3211(a)(7) and CPLR 3212 for an order summarily dismissing the claims and cross-claims against it on the grounds that a storm in progress at the time of plaintiff's accident precludes liability, as does its status as an out-of-possession landlord or, in the alternative, directing co-defendant United Nations Development Corporation (UNDC) to indemnify it. Plaintiff concedes that City is an out-of-possession landlord but disputes that it is relieved of liability by virtue of a storm in progress. UNDC and Jones Lang LaSalle (JLL) (collectively, co-defendants) agree that the storm relieves City of liability. At oral argument on June 29, 2010, the parties agreed that City is an out-of-possession landlord, and by so-ordered stipulation dated June 29, 2010, plaintiff and co-defendants discontinued their actions against City, and City withdrew its motion.

Although co-defendants do not independently move for summary judgment, they join City's motion and argue the merits of it as it pertains to them. As plaintiff responds to their arguments, I search the record to determine whether co-defendants are entitled to a summary dismissal of the complaint. (CPLR 3212[b]; see Pope v Safety Quality Plus, Inc., 74 AD3d 1040 [2d Dept 2010] [Supreme Court has authority to search record and grant summary judgment to non-moving party on issue that was subject of motion before court]; Abramovitz v Paragon Sporting Goods Co., Inc., 202 AD2d 206, 208 [1^st Dept 1994] [court may search record and grant summary judgment to non-moving party without notice or cross-motion]).

I. BACKGROUND

On February 12, 2008, plaintiff was allegedly injured after slipping and falling in the lobby of One U.N. Plaza in Manhattan due to an accumulation of water and melted snow on the lobby floor. (Affirmation of Andrew Lucas, Esq., dated Apr. 27, 2010 [Lucas Aff.], Exh. A). On or about May 5, 2008, plaintiff served a notice of claim on City, in which she alleged that the water and melted snow accumulated on the lobby floor because no mats or other traction devices were placed thereon. ( Id.)

On July 15, 2008, plaintiff testified at a 50-h hearing that on the day of her accident, she reported for work at One U.N. Plaza at approximately 12:10 p.m. ( Id., Exh. B). Although she had seen no snow before noon, it was snowing soon thereafter when she left the building. Upon her return at approximately 2:15 p.m., she fell on the wet floor. There were no mats or any other traction devices on the floor. Plaintiff saw people entering the lobby with snow on their shoes. ( Id.).

On July 28, 2008, plaintiff commenced this action by serving a summons and complaint on all defendants. ( Id., Exh. C). City served its answer on August 20, 2008 ( id., Exh. D), and co-defendants served their answer on September 22, 2008 ( id., Exh. E).

II. CONTENTIONS

Co-defendants argue that they cannot be held liable for plaintiff's injury because a storm was in progress when plaintiff fell, and that the floor was wet as a result. (Affirmation of Leon R. Kowalski, Esq., dated June 17, 2010 [Kowalski Aff.]). In support, they rely on plaintiff's 50-h hearing testimony and a certified weather report submitted by City which reflects that at 2 p.m. on February 12, 2008, rain, freezing rain, snow, heavy fog, freezing fog, mist, and unknown precipitation began to fall and continued to fall on an hourly basis until approximately 5 p.m. on February 13, 2008, and that by the end of February 12, .55 inches of precipitation had fallen and by the end of February 13, 2.49 inches had fallen. (Lucas Aff., Exh. G).

In opposition, plaintiff argues that co-defendants may be held liable notwithstanding the storm in progress as no mats or other devices had been placed in the lobby to protect people from the slippery condition. Given co-defendants' policy of placing mats on the floor in anticipation of a storm, plaintiff maintains that their failure to do so evidences negligence. (Affirmation of Barry S. Bernstein, Esq., dated May 14, 2010). In support, plaintiff relies on excerpts from her own deposition testimony and that of a JLL witness. ( Id., Exhs. A, B).

III. ANALYSIS

The party seeking summary judgment must show prima facie entitlement to judgment as a matter of law by presenting sufficient evidence to negate any material issues of fact. ( Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). If the movant meets this burden, the opponent must rebut the prima facie showing by submitting admissible evidence, demonstrating the existence of factual issues that requires a trial. ( Zuckerman v City of New York, 49 NY2d 557, 562; Bethlehem Steel Corp. v Solow, 51 NY2d 870, 872). Otherwise, denial of the motion is required, regardless of the sufficiency of the opposition papers. ( Winegrad, 64 NY2d at 853).

An owner or occupant of premises has a duty to remove an accumulation of snow or ice inside or outside the premises which may be dangerous to those entering the premises, or to take other measures to ensure the safety of the premises, when it has actual or constructive notice of the existence of the condition and a reasonable opportunity to act. (86 NY Jur 2d, Premises Liability § 341 [2010]; 15 NY Prac, New York Law of Torts § 12:11 [2010]; see eg Solazzo v New York City Transit Auth., 21 AD3d 735 [1^st Dept 2005], affd 6 NY3d 734; Helms v Regal Cinemas, Inc., 49 AD3d 1287 [4^th Dept 2008]; Blackwood v New York City Transit Auth., 36 AD3d 522 [1^st Dept 2007]; Hussein v New York City Transit Auth., 266 AD2d 146 [1^st Dept 1999]; Zonitch v Plaza at Latham LLC, 255 AD2d 808 [3d Dept 1998]).

However, an owner or occupant of premises "will not be held liable for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter." ( Solazzo v New York City Transit Auth., 6 NY3d 734; 15 NY Prac, New York Law of Torts § 12:11]). Thus, the duty "to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while the storm is in progress, and does not commence until a reasonable time after the storm has ended." ( Pippo v City of New York, 43 AD3d 303 [1^st Dept 2007]). It is not until "the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation," that an owner or occupant may be held liable for injuries caused by accumulated ice or snow. ( Powell v MLG Hillside Assocs., L.P., 290 AD2d 345 [1^st Dept 2002]). Evidence of a storm in progress constitutes prima facie evidence of the absence of a duty. ( Id. at 345-46).

Moreover, a slip and fall on a wet floor on a rainy or snow day does not warrant recovery solely on the ground that the floor was wet, nor may negligence be based solely on a failure to place mats on a floor on a rainy or snowy day. (86 NY Jur 2d, Premises Liability §§ 434, 436 [2010]; see Kovelsky v City Univ. of New York, 221 AD2d 234 [1^st Dept 1995] [defendant "not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in, melting snow"]).

Here, the certified climatological data reflects that the precipitation began to fall at 2 p.m., minutes before plaintiff's fall, and that it continued unabated until the following day. Co-defendants have thus established, prima facie, that there was a storm in progress when plaintiff fell. ( Solazzo, 21 AD3d 735 [as accident on station floor occurred while storm was ongoing, defendants had no duty to clear any accumulated water]; Hussein, 266 AD2d 146 [plaintiff's claim precluded by evidence that sleet was falling at the time of her accident inside entrance of subway station]).

Plaintiff does not dispute that a storm was in progress but argues that co-defendants may nonetheless be held liable for failing to place mats on the floor of the lobby. However, evidence that an owner "had a practice of placing a certain number of mats in a particular fashion in inclement weather and failed to adhere to that practice at the time of the accident is insufficient to raise a triable issue of fact" with respect to the owner's negligence. ( Pomahac v TrizecHahn 1065 Ave. of Am., LLC, 65 AD3d 462 [1^st Dept 2009]).

In any event, as it is undisputed that there was a storm in progress at the time of plaintiff's accident, co-defendants' duty to take reasonable measures to ameliorate any dangerous condition caused by the storm was suspended. ( See Solazzo, 21 AD3d at 736 [as there was storm in progress, defendants not liable even though there were no mats on floor]). Plaintiff thus fails to raise a triable issue of fact as to whether co-defendants may be held liable for their failure to place mats in the lobby. ( See eg Abraham v Port Auth. of New York and New Jersey, 29 AD3d 345 [1^st Dept 2006] [finding well-settled that there is no liability for injuries sustained in fall due to weather-related condition arising during storm in progress]).

IV. CONCLUSION

Accordingly, it is hereby

ORDERED, defendant City of New York's motion for summary judgment is withdrawn and summary judgment is granted in favor of defendants The United Nations Development Corporation, and Jones Lang Lasalle and the complaint is dismissed with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED, that the Clerk is directed to enter judgment accordingly.