Opinion
No. 20602/09.
2012-04-13
Marcelino AYALA, Plaintiff, v. HUNTS POINT ASSOCIATES, LLC, s/h/a Hunts Point Association, LLC and New City Management, LLC, Defendants.
Keith S. Tallbe, Esq., Attorney for Plaintiff. Stephanie Johnston, Esq., Attorney for Defendants.
Keith S. Tallbe, Esq., Attorney for Plaintiff. Stephanie Johnston, Esq., Attorney for Defendants.
ALEXANDER W. HUNTER JR., J.
The motion by defendants for an order seeking leave to reargue this court's prior decision dated November 21, 2011, which denied summary judgment in their favor, is denied. Defendants further motion for an order granting leave to renew this court's prior decision based upon new facts and exhibits not offered on the prior motion, is granted. Upon renewal, summary judgment is granted in favor of defendants.
The cause of action is for personal injuries alleged to have been sustained by plaintiff in a slip and fall accident that occurred in an inside stairwell of defendants' building on February 6, 2009. Plaintiff alleges that he slipped and fell on the stairs due to rainwater that was entering through a broken window in the stairwell.
Defendants previously moved for summary judgment on the ground that they did not have actual or constructive notice of a defective condition in the stairwell and never received any previous complaints that water was accumulating on the stairs due to an open “broken” window. Additionally, defendants argued that there was no evidence that the subject window allowed rainwater to enter the stairwell on the day of plaintiff's fall because climatological data submitted for February 2009 for Central Park, New York shows that it did not rain on the day of plaintiff's accident or on the day before. Defendants pointed out that at his deposition, plaintiff stated that he did not observe any water on the stairwell upon ascending the stairs to his mother-in-law's apartment when he first arrived in the building. However, he stated that he observed rainwater coming in through the window immediately after he fell.
Plaintiff opposed the motion and referred to the deposition of plaintiff's mother-in-law, Georgina Lorenzo, wherein she alleged that she had reported the defective window to the building superintendent on multiple occasions. Moreover, at her deposition, she stated that it was raining on the day of the accident. Plaintiff argued that since his deposition testimony and that of Ms. Lorenzo conflicted with the weather report submitted by defendants and because there was conflicting testimony with respect to whether defendants had actual notice of the defective window, summary judgment should be denied.
This court denied the motion for summary judgment and ruled that there were issues of fact with respect to notice of the alleged defect in the window of the stairwell. Moreover, the fact that climatological data showing that it was not raining in Central Park on the day of the accident conflicted with the deposition testimony of plaintiff and his mother-in-law that it was raining in the Bronx, raised an issue of fact for the jury to resolve.
Defendants now move to reargue this court's decision on the ground that this court overlooked plaintiff's failure to provide any supporting weather data or an affidavit from a meteorologist to contradict the weather data provided by the moving defendants.
Defendants' motion to reargue is denied as defendants' failed to demonstrate pursuant to C.P.L.R. § 2221(d), that this court misapprehended the relevant facts or misapplied any controlling principle of law.
Defendants further move to renew the prior decision of this court on the ground that there is new evidence which clearly shows that it was not raining in Bronx County on the day of plaintiff's accident. In support of the motion to renew, defendants submit a certified copy of “radar shots” of Bronx County on the day of plaintiff's accident from the National Climatic Data Center in Asheville, N.C. Defendants assert that these “radar shots” show that there was no precipitation of any kind nor was there any type of storm in or around the New York area, including Bronx County, on the day of plaintiff's accident. Defendants claim that if it had been raining at any time that day, the radar shots would have included a “Precipitation Mode” scale. Since there was no “Precipitation Mode” scale and the dBZ legend on the right side of the graphs are in “Clear Air Mode” this demonstrates that it did not rain at any time that day.
Defendants' counsel further asserts that she contacted a meteorologist from the National Climatic Data Center to determine if there is any data from local weather stations in the Bronx County area. Defendants were then provided with a “Station Index Number” with which they could research weather data from a local Bronx County station. Defendants submit a “Record of River and Climatological Observation” and in the precipitation column for February 6, 2009, it indicates that “zero” rainfall or snowfall occurred that day.
Based upon the foregoing new, additional evidence, defendants contend that there is no question that it did not rain on the date of plaintiff's accident and summary judgment should be granted in their favor. Defendants acknowledge that the party seeking renewal must show a reasonable justification for the failure to present such facts on the prior motion. However, they cite to a case from the Appellate Division, Second Department and assert that the requirement is a flexible one and a court may grant renewal upon facts known to the moving party at the time of the original motion.
Defendants assert that they did not submit this new evidence with their previous motion because they reasonably believed that the certified weather report from the Central Park Observatory that they submitted with their motion for summary judgment was sufficient evidence of the purported weather conditions in Bronx County. Defendants assert that there are five (5) major weather stations that record climate data and weather conditions in New York City and the closest major weather stations to Bronx County are the Central Park Observatory and LaGuardia Airport Station. As such, they believed that no further evidence would be required to establish that rainfall did not occur on the date and time plaintiff alleged that it was raining.
Plaintiff opposes the motion and argues that the additional evidence submitted by defendants does not make the rebutting evidence “disappear.” Plaintiff contends that the deposition testimony of plaintiff's mother-in-law that it was raining still creates an issue of fact for the jury's consideration. Moreover, plaintiff argues that the additional evidence is inadmissible because no foundation has been submitted by defendants and the evidence consists of diagrams and a graph without an author, signature or a sworn statement regarding how they were made and what they mean. In addition, the evidence creates more issues of fact with respect to how precipitation is measured and the way in which it is monitored and only a meteorologist can address those issues.
In reply, defendants point out that the radar shots and climatological observation for Bronx County were certified copies and pursuant to C.P.L.R. § 4540, Weather Bureau records are self-authenticating. Defendants reiterate that no rainfall occurred on the date of the accident. They contend that there is no issue of fact for the jury to consider since the scientific data shows it was not raining in Bronx County despite Ms. Lorenzo's testimony to the contrary. Defendants argue that this court cannot allow plaintiff to proceed when the only evidence of rainfall comes from the self-serving testimony of the plaintiff and his mother-in-law. Accordingly, the motion should be granted.
It has been established that a motion to renew, “... must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the court. Renewal should be denied where the party fails to offer a valid excuse for not submitting the additional facts upon the original application.” Foley v. Roche, 68 A.D.2d 558 (1st Dept.1979); C.P .L.R. § 2221(e).
The Appellate Division, First Department has ruled that, “Although renewal motions generally should be based on newly discovered facts that could not be offered on the prior motion ... courts have discretion to relax this requirement and to grant such a motion in the interest of justice ...” (citations omitted). Mejia v. Nanni, 307 A.D.2d 870 (1st Dept.2003). The First Department also stated, “Indeed, we have held that even if the vigorous requirements for renewal are not met, such relief may be properly granted so as not to defeat substantive fairness'...” (citations omitted). Tishman Construction Corporation of New York v. The City of New York, 307 A.D.374 (1st Dept.2001).
In the case at bar, defendants reasonably believed that the climatological data from the Central Park Observatory would be sufficient to support their argument that it did not rain in the Bronx on the day of plaintiff's fall and thus, he could not have slipped and fallen as a result of rainwater entering a defective window. However, since this court ruled that such climatological data was not conclusive of the issue given the deposition testimony of plaintiff and his mother-in-law, defendants endeavored to obtain additional weather information specific to Bronx County after this court's decision. As such, this court will consider the motion to renew.
The radar shots submitted by defendants are not clear in that in order to interpret them, defendants refer this court to the National Climate Data Weather website. However, the Climatological Observation for Bronx County for the date of the accident is persuasive in that said report, which was certified and therefore, in proper form pursuant to C.P.L.R. § 4540, shows that there was no precipitation in Bronx County at any time that day. Additionally, C.P.L.R. § 4528 states, “Any record of the observations of the weather, taken under the direction of the United States weather bureau, is prima facie evidence of the facts stated.”
The additional scientific evidence submitted by defendants renders Ms. Lorenzo's deposition testimony, that it had been raining all day on the day of plaintiff's accident and that the rain had started at 10:00 in the morning, incredible as a matter of law. (Lorenzo Deposition Testimony, p. 12, lines 4–11). Said scientific evidence also renders plaintiff's deposition testimony that rainwater was entering through a broken window, incredible as a matter of law. Absent any rainfall on the day of plaintiff's accident in Bronx County, plaintiff could not have slipped and fallen due to the presence of rainwater that was entering through a window and defendants' motion for summary judgment is hereby granted.
Defendants are directed to serve a copy of this order with notice of entry upon the plaintiff and file proof thereof with the clerk's office.
This constitutes the decision and order of this court.