Opinion
11577 Index 302090/15
05-28-2020
Omar HERRERA, Plaintiff–Appellant, v. Carlos VARGAS, Defendant–Respondent. [And a Third–Party Action]
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondent.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondent.
Renwick, J.P., Richter, Manzanet–Daniels, Singh, Moulton, JJ.
Order, Supreme Court, Bronx County (Joseph Capella, J.), entered on or about September 29, 2017, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
In this action arising from plaintiff's slip-and-fall on snow and ice, the court's determination that defendant was entitled to summary judgment dismissing the complaint on the ground that he is an out-of-possession landlord is no longer sound in light of the Court of Appeals's decision in Xiang Fu He v. Troon Mgt., Inc., 34 N.Y.3d 167, 114 N.Y.S.3d 14, 137 N.E.3d 469 [2019]. Moreover, even if, as defendant urges, plaintiff was required to plead defendant's violation of Administrative Code of City of New York § 7–210—which he undisputedly failed to do—plaintiff's reliance thereon for the first time in opposition to defendant's motion for summary judgment was permissible, given that doing so did not raise any new theory of liability or prejudice (cf. e.g., DB v. Montefiore Med. Ctr., 162 A.D.3d 478, 478, 80 N.Y.S.3d 9 [1st Dept. 2018] ; Wadsworth Condos, LLC v. Dollinger Gonski & Grossman, 114 A.D.3d 487, 487, 980 N.Y.S.2d 411 [1st Dept. 2014] ; Alarcon v. UCAN White Plains Hous. Dev. Fund Corp., 100 A.D.3d 431, 432, 954 N.Y.S.2d 13 [1st Dept. 2012] ).
Defendant made a prima facie case for summary judgment on his alternative ground that a storm was in progress at the time of plaintiff's accident, through plaintiff's deposition testimony that it was snowing when he fell (see Mosley v. General Chauncey M. Hooper Towers Hous. Dev. Fund Co., Inc., 48 A.D.3d 379, 380, 851 N.Y.S.2d 563 [1st Dept. 2008] ). However, plaintiff raised triable issues of fact in opposition. The sworn report of his meteorological expert concluded, among other things, that, at the time of plaintiff's accident, no snow was falling, and three inches of preexisting snow and ice was on the ground. Coupled with plaintiff's testimony regarding the condition of the sidewalk at the time of his accident, an issue "of fact exist[s] as to whether plaintiff's fall was caused by an ice condition associated with [a] prior storm, and whether defendant[ ] had a reasonable time to remedy it before the accident" ( Bagnoli v. 3GR/228 LLC, 147 A.D.3d 504, 505, 47 N.Y.S.3d 32 [1st Dept. 2017] ; see Womble v. NYU Hosps. Ctr., 123 A.D.3d 469, 470, 998 N.Y.S.2d 49 [1st Dept. 2014] ; Walters v. Costco Wholesale Corp., 51 A.D.3d 785, 786, 858 N.Y.S.2d 269 [2d Dept. 2008], cited in Massey v. Newburgh W. Realty, Inc., 84 A.D.3d 564, 568, 923 N.Y.S.2d 81 [1st Dept. 2011] ; Rivas v. New York City Hous. Auth., 261 A.D.2d 148, 148, 689 N.Y.S.2d 483 [1st Dept. 1999] ).