Opinion
No. 10010/2008.
2012-12-12
Martha HAUZE, as Administratrix of the Estate of Jamie R. Toro a/k/a Jaime Toro, deceased, Plaintiff, v. VILLAGE MALL AT HILLCREST CONDOMINIUM et al., Defendants.
CHARLES J. MARKEY, J.
The following papers numbered 1 to 10 read on this motion by defendant Village Mall at Hillcrest Condominium (Condominium) for summary judgment dismissing the complaint asserted against it.
+-----------------------------------------------+ ¦Papers ¦Numbered ¦ +------------------------------------+----------¦ ¦Notice of Motion—Affidavits—Exhibits¦1–4 ¦ +------------------------------------+----------¦ ¦Answering Affidavits–Exhibits ¦5–8 ¦ +------------------------------------+----------¦ ¦Reply Affidavits ¦9–10 ¦ +-----------------------------------------------+
Upon the foregoing papers, it is ordered that the motion is determined as follows:
Plaintiff's decedent was allegedly injured when he slipped on ice on the sidewalk on the 150th Street side of the building premises known as 150–38 Union Turnpike, Flushing, New York, and fell onto a metal grate, while walking his dog at approximately 11:50 A.M. on February 16, 2007. Plaintiff alleges that defendants were negligent in the ownership, operation, maintenance, management, supervision, and control of the sidewalk, in creating an icy condition by negligent snow and ice removal efforts, and by failing to keep the sidewalk free of ice, thereby creating a dangerous and defective condition of which defendants had actual and constructive notice and to give notice or warning thereof.
Defendant Condominium moves for summary judgment, dismissing the complaint asserted against it. It contends the alleged accident occurred on the public sidewalk, and that no icy condition existed to cause plaintiff's fall. Defendant Condominium also contends it did not have notice of the alleged icy condition.
It is well settled that the proponent of a summary judgment motion “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp ., 68 N.Y.2d 320, 324 [1986];Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985] ). Furthermore, the court's function on a motion for summary judgment is issue finding, not issue determination ( see Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404 [1957] ). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied ( see Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231 [1978] ).
Defendant Condominium has failed to satisfy its prima facie burden of establishing its entitlement to summary judgment as a matter of law ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ). Contrary to the assertion of counsel for defendant Condominium, the deposition testimony of Jonny Roman, a handyman and porter employed by the condominium, is ambiguous on the issue of whether ice existed at the location where plaintiff allegedly fell. Mr. Roman testified that he did not witness plaintiff's fall, but rather responded to a call regarding it. He stated he had been “covering the door” for the doorman when the call came and that he went to see plaintiff and observed plaintiff “fallen down.” Mr. Roman testified he “just looked at [plaintiff]” who was on the sidewalk, and “went back immediately because I couldn't leave the door of the lobby. So it might have been only two minutes for me to go there, see him, and go back.” Mr. Roman also testified that he did not help plaintiff to get up and did not call an ambulance. He further testified he saw “nothing” when asked if he saw any ice, but when asked if he checked for the presence of ice, he answered, “As I mentioned before, we would clean the snow around there. It has to be cleaned, something like that. That place is always clean.” When then asked if he had looked for ice, Mr. Roman testified “there was no snow, there was no ice.” However, when again asked the question, “Did you look for ice?,” this time he answered “No, there was none.” Mr. Roman also admitted that he did not return to the accident location within one hour after the accident to see if there was any snow or ice there.
Even assuming Mr. Roman's testimony is sufficient to support defendant Condominium's claim there was no icy condition on the sidewalk, plaintiff has raised a triable issue of fact as to whether one existed and was the cause of his fall, and defendant Condominium has failed to establish it did not create or have actual or constructive notice of the existence of the ice. Plaintiff testified that although he did not see the presence of the ice on the sidewalk prior to his fall, before he got up, he observed he had slipped on “dirty ice,” which was “[l]ike dark gray, black” next to the metal piece. Mr. Roman did not testify as to when the last snow or ice removal work with regards to the sidewalk location in question had been performed prior to the date of the accident, but rather testified to the snow removal procedures at the condominium. He stated the porters and superintendent are responsible for cleaning the snow, and use a small tractor to remove snow and a plastic device on wheels which is manually operated to spread salt onto the sidewalks. He also stated that the “salt dilutes or melts the ice and becomes water,” but conceded he did not know if anyone checks later on to see if the snow or ice is gone following the application of salt. Mr. Roman stated that porters at the property do not have to log in any book that they have done the cleaning of snow and ice. The copies of the security logbook entries offered by defendant Condominium also do not indicate when the last time snow or ice removal was performed with respect to the sidewalks prior to the time of the accident. The meteorological records offered by defendant Condominium indicate that there was no snowfall or precipitation on February 16, 2007, the date of the accident, and the last date prior to the accident when there was any significant snowfall was February 14, 2007. Such records also indicate that the temperature ranged from 31°F to 19°F on February 14, 2007, 25°F to 17°°F on February 15, 2007, and 30°F to 19°F on February 16, 2007. Under such circumstances, defendant Condominium has failed to show that snow and ice removal efforts were performed during the period following the February 14, 2007 snowfall and the time of the accident, and that the snow could not have melted as a consequence of application of salt, and then refroze recreating an icy condition during such period ( see Nikolic v. Valley Stream Cent. High School Dist., 240 A.D.2d 551 [1997] ).
The motion is denied.