Opinion
Index No. 500474/2019 Sequence No. 1 NYSCEF Doc. No. 63
05-19-2020
VIVIAN HAGEN Plaintiff, v. SCHUYLER MEADOWS DEVELOPMENT LLC, CHESTNUT RIDGE ASSOCIATES, LLC, HARMONY MANAGEMENT CO., and DANIEL SCHUYLER DUNNING Defendants.
Unpublished Opinion
ORDER & DECISION
HON. GINA C. CAPONE, J.S.C.
The following papers, numbers 1-30, were read and considered on the defendants' motion for summary judgment dismissing the complaint in its entirety.
PAPERS NUMBERED
Notice of Motion/ Attorney Affirmation in Support/ Exhibits A-G/Affidavit of Vincent Travis/Exhibit A to Travis Affidavit/ Affidavit of Howard Altschule/ Exhibits A-B to Altschule Affidavit/Memorandum of Law in Support_____1-15
Attorney Affirmation in Opposition to Motion for Summary Judgment/Exhibits A-K/ Memorandum of Law in Opposition____ 16-28
Memorandum of Law in Reply/Affidavit of Howard Altshule_____ 29-30
In this action to recover damages for personal injuries resulting from a slip and fall on snow and/or ice, the defendants Schuyler Meadows Development LLC, Harmony Management Co. and Daniel Schuyler Dunning move pursuant to CPLR 3212 for summary judgment dismissing the complaint in its entirety. The movants contend that meteorological evidence submitted in support of the motion conclusively establishes that a winter storm was in progress on the day and time of the accident. As such, the plaintiffs claims against the defendants are defeated by the storm in progress doctrine. Moreover, there was no evidence that a hazardous condition existed prior to the storm or that the defendants created or had actual and/or constructive notice of same.
The action, insofar as asserted against defendant Chestnut Ridge Associates, LLC, was discontinued with prejudice by stipulation of the parties dated February 4, 2020 (NYSCEF Doc. 23).
The plaintiff contends that the storm in progress rule is inapplicable to the case here, where the plaintiff slipped on ice that pre-dated the date of the accident. The plaintiff further contends that there are questions of fact as to whether the icy condition was created by the actions of the defendants and whether thethe defendants had actual and/or constructive notice of the condition. The plaintiff also contends that sanctions should be imposed against the defendants for their spoliation of evidence.
A. Storm in Progress
"A defendant may be held liable for a dangerous condition on its premises caused by the accumulation of snow or ice upon a showing that it had actual or constructive notice of the condition, and that a reasonably sufficient time had lapsed since the cessation of the storm to take protective measures" (Sabatino v 425 Oser Ave., LLC, 87 A.D.3d 1127, 1128 [2d Dept 2011]). Under the storm in progress rule, "[a] property owner will not be held liable in negligence for a plaintiffs 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 Tr. Auth., 6 N.Y.3d 734, 735 [2005]).
In support of their motion, the defendants submitted, inter alia, an affidavit of Howard Altschule, a certified consulting meteorologist, who affirmed that "no snow or ice was present on exposed, untreated and undisturbed surfaces for approximately four (4) days prior to the onset of a winter storm that affected the incident location on January 29, 2019" (NYSCEF Doc. 35 at pg. 8, 9). He further affirmed that Doppler radar images showed a continuous light to moderate snow fall over the incident location from approximately 8:45am through 10:58pm, resulting in approximately 2.4 inches of snow accumulation on January 29, 2019 (NYSCEF Doc. 35 at pg. 8). He further affirmed that between 9:30am and 10:00am on January 29, 2019, "light snow was falling, snow was actively accumulating as a result of the winter storm that was still in progress" and a "light coating of new snow and very slippery conditions were present on exposed, untreated and undisturbed surfaces" as a result of the winter storm (NYSCEF Doc. 35 at pg. 8). Finally, at 11:30 am on January 29, 2019, "light snow was falling, snow was accumulating as a result of the winter storm that was still in progress" and a "light coating of new snow and very slippery conditions were present on exposed, untreated and undisturbed surfaces" as a result of the winter storm (NYSCEF Doc. 35 at pg. 8-9). Accordingly, it was his opinion, with a reasonable degree of scientific and meteorological certainty, that "[a]ll of the snowy and slippery conditions that were present at the time of the incident were directly a result of the winter storm that was still in progress" (NYSCEF Doc. 35 at pg. 10).
However, the defendants also submitted the deposition transcripts of the plaintiff (NYSCEF Doc. 30) in support of their motion for summary judgment. Ms. Hagen testified that, prior to her accident on January 29, 2019, she observed snow and ice accumulations in her parking spot (NYSCEF Doc. 30 at pg. 45-46). Her spot was not cleared the way it normally was (NYSCEF Doc. 30 at pg. 45-46). The morning of her accident, she saw snow had accumulated on her car from overnight (NYSCEF Doc. 30 at pg. 36, 49-50). She testified repeatedly that it was not snowing when she woke up that morning and it did not snow between when she woke up around 9am and when she fell around 11:30am (NYSCEF Doc. 30 at pg. 36, 51). When she entered her vehicle on the morning of January 29, 2019, she observed snow and ice at her driver's side door that had accumulated from previous snowfalls (NYSCEF Doc. 30 at pg. 55, 58). It was "residue of old ice and snow accumulated from previous days" (NYSCEF Doc. 30 at pg. 56). Although she did not slip or fall in the process of clearing off her car and entering it (NYSCEF Doc. 30 at pg. 60-61), when she returned from her errands, she exited her car and, as soon as she closed the driver's side door, she slipped on the ice and snow next to her driver's side door (NYSCEF Doc. 30 at pg. 64-65).
Here, the defendants have failed to establish their prima facie entitlement to judgment as a matter of law based on the storm in progress rule. The climatological data and expert report submitted by the defendants in support of their motion contradicted the plaintiffs deposition testimony, which the defendants also submitted in support of their motion, as to whether snow was falling at or near the time of the accident. Since the evidence submitted by the defendants was in conflict and, thus, could not establish, prima facie, that the storm in progress rule applied (see Pecoraro v Tribuzio, 155 A.D.3d 1057, 1058 [2d Dept 2017]; see also Daniel v East Williston Union Free School District, 180 A.D.3d 750 [2d Dept 2020]), the defendants failed to meet their initial burden as the movants. As such, we need not review the sufficiency of the plaintiffs opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]).
B. Creation & Notice
Even though the movants have not established their entitlement to dismissal of the complaint on the storm in progress rule, the movants contend, nevertheless, that the complaint should still be dismissed because there is no question that the defendants did not create or have actual or constructive notice of the alleged dangerous condition upon which the plaintiff allegedly slipped.
A property owner may not be held liable for a dangerous condition of snow or ice on the property unless the owner created the alleged hazardous condition or had actual or constructive notice of the condition (see Velasquez v Pro Park, Inc., 173 A.D.3d 1246, 1247 [2d Dept 2019]; Hall v Staples the Off. Superstore E., Inc., 135 A.D.3d 706 [2d Dept 2016]).
However, in this regard, the movants have similarly failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law. The movants' submission of, inter alia, the deposition testimony and affidavit of Mr. Travis, failed to eliminate all questions of fact with respect to whether the defendants created or had actual or constructive notice of any dangerous ice accumulation prior to the plaintiffs accident. Specifically, Mr. Travis had no recollection with respect to the weather conditions on or leading up to January 29, 2019, had no recollection whether any snow or ice removal was done on or in the week leading up to January 29, 2019, and had no recollection if any salt or calcium chloride was put down on or in the week leading up to January 29, 2019 (NYSCEF Doc. 31 at pg 33-34). Furthermore, he was not asked nor did he indicate whether he had a normal inspection routine with respect to the parking lot. Moreover, while the movants established that snow removal activities were undertaken on January 21 and 22, 2019 (NYSCEF Doc. 34), there was no additional evidence submitted as to what, if any, cleaning procedures or inspection procedures were performed between January 22, 2019, and the time of the plaintiffs accident on January 29, 2019. Mr. Travis also testified to a practice of piling snow up on the grass near the plaintiffs car and having observed snow melt from those piles, re-freezing (NYSCEF Doc. 34 at pg. 48, 58). Moreover, while it is clear from plaintiffs deposition testimony that she never notified any of the defendants of the alleged condition herself, she did testify that the ice accumulation around her car and in the parking lot existed for a number of days leading up to the accident. Accordingly, these submissions were insufficient to eliminate all issues of fact with respect to whether the defendants either created or had actual or constructive notice of the ice that allegedly caused the plaintiff to fall (see Muzio v Levittown Union Free School District, 172 A.D.3d 1212, 1213 [2d Dept 2019]; Ahmetaj v Mountainview Condominium, 171 A.D.3d 683, 684-685 [2d Dept 2019]; D'Esposito v Manetto Hill Auto Serv., Inc., 150 A.D.3d 817 [2d Dept 2017]).
Since the movants did not meet their prima facie burden, it is unnecessary to determine whether the plaintiffs' papers submitted in opposition to the defendant's motion were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d at 853).
Accordingly, it is hereby
ORDERED that the defendants' motion for summary judgment (Seq. #1) is denied in its entirety; and it is further
ORDERED that any other relief sought herein and not specifically discussed is denied; and it is further
ORDERED that the parties shall appear virtually before the Court for a status/settlement conference on June 2, 2020, at 11:00am.