Opinion
818 CA 19-01283
02-11-2021
Glenn GOULD and Amy Gould, Plaintiffs-Appellants, v. 93 NYRPT, LLC, Ronald Benderson 1995 Trust and Ridge Maintenance Corp., Defendants-Respondents. (Appeal No. 2.)
ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (ANDREW CONNELLY OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (ROBERT A. CRAWFORD, JR., OF COUNSEL), FOR DEFENDANTS-RESPONDENTS 93 NYRPT, LLC AND RONALD BENDERSON 1995 TRUST. HURWITZ & FINE, P.C., BUFFALO (JODY E. BRIANDI OF COUNSEL), FOR DEFENDANT-RESPONDENT RIDGE MAINTENANCE CORP.
ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (ANDREW CONNELLY OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (ROBERT A. CRAWFORD, JR., OF COUNSEL), FOR DEFENDANTS-RESPONDENTS 93 NYRPT, LLC AND RONALD BENDERSON 1995 TRUST.
HURWITZ & FINE, P.C., BUFFALO (JODY E. BRIANDI OF COUNSEL), FOR DEFENDANT-RESPONDENT RIDGE MAINTENANCE CORP.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the amended order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Glenn Gould (plaintiff) when he allegedly slipped and fell on ice in a parking lot on property owned by defendants 93 NYRPT, LLC and Ronald Benderson 1995 Trust (collectively, Benderson defendants). The Benderson defendants contracted with defendant Ridge Maintenance Corp. (Ridge) to perform snow removal at the property. Plaintiffs appeal from an amended order that, inter alia, granted Ridge's motion for summary judgment dismissing the complaint against it and granted the cross motion of the Benderson defendants insofar as it sought summary judgment dismissing the complaint against them. We affirm.
"Although a landowner owes a duty of care to keep his or her property in a reasonably safe condition, he will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter" ( Sherman v. New York State Thruway Auth., 27 N.Y.3d 1019, 1020-1021, 32 N.Y.S.3d 568, 52 N.E.3d 231 [2016] [internal quotation marks omitted]; see Perez v. Grecian Garden Apts., LLC , 67 A.D.3d 1411, 1412, 887 N.Y.S.2d 895 [4th Dept. 2009] ). Contrary to plaintiffs’ contention, we conclude that defendants met their respective initial burdens on their motion and cross motion for summary judgment. Defendants submitted the affidavit of an expert meteorologist, which detailed the weather conditions in the area where the slip and fall occurred and thereby established that "a storm was in progress at the time of the [slip and fall] and, thus, that [defendants] had no duty to remove the snow and ice until a reasonable time ha[d] elapsed after cessation of the storm" ( Gilbert v. Tonawanda City School Dist. , 124 A.D.3d 1326, 1327, 1 N.Y.S.3d 662 [4th Dept. 2015]. [internal quotation marks omitted]; see Glover v. Botsford , 109 A.D.3d 1182, 1183, 971 N.Y.S.2d 771 [4th Dept. 2013] ). Although defendants also submitted the deposition testimony of plaintiff stating his observations of the conditions at the scene of the slip and fall, that testimony established, at most, a possible lull or break in the storm that did not afford defendants a reasonable amount of time in which to correct the hazardous conditions (see Witherspoon v. Tops Mkts., LLC , 128 A.D.3d 1541, 1542, 8 N.Y.S.3d 843 [4th Dept. 2015] ; Gilbert , 124 A.D.3d at 1327, 1 N.Y.S.3d 662 ; Baia v. Allright Parking Buffalo, Inc. , 27 A.D.3d 1153, 1153-1154, 811 N.Y.S.2d 843 [4th Dept. 2006] ).
We further conclude that, in opposition, plaintiffs failed to "raise a triable issue of fact whether the accident was caused by a slippery condition at the location where the plaintiff fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and that the defendant[s] had actual or constructive notice of the preexisting condition" ( Quill v. Churchville Chili Cent. Sch. Dist. , 114 A.D.3d 1211, 1212, 979 N.Y.S.2d 756 [4th Dept. 2014] [internal quotation marks omitted]; see Chapman v. Pyramid Co. of Buffalo , 63 A.D.3d 1623, 1624, 881 N.Y.S.2d 246 [4th Dept. 2009] ). The opinions contained in the affidavit of the meteorological expert submitted by plaintiffs constitute "mere speculation based on general weather conditions that were prevailing in the region" ( Greco v. Grande , 160 A.D.3d 1345, 1346, 76 N.Y.S.3d 345 [4th Dept. 2018] ). The affidavit is also conclusory and speculative with respect to whether the ice existed prior to the storm and whether there was a storm in progress. It is therefore insufficient to raise a triable issue of fact (see Menear v. Kwik Fill , 174 A.D.3d 1354, 1356, 105 N.Y.S.3d 766 [4th Dept. 2019] ; Moran v. Muscarella , 87 A.D.3d 1299, 1300, 930 N.Y.S.2d 331 [4th Dept. 2011] ; O'Donnell v. Buffalo-DS Assoc., LLC , 67 A.D.3d 1421, 1423, 889 N.Y.S.2d 335 [4th Dept. 2009], lv denied 14 N.Y.3d 704, 2010 WL 606540 [2010] ).