Opinion
14190 Index No. 21267/16E Case No. 2020–03581
09-28-2021
Orrin MCRAE, Plaintiff–Respondent, v. NEW YORK FLOWER, LLC, Defendants, C & P Real Estate Holdings, LLC, Defendant–Appellant.
Varvaro, Cotter & Bender, White Plains (Stephen J. Cassels of counsel), for appellant. CellinoLaw LLP, New York (John Lavelle of counsel), for respondent.
Varvaro, Cotter & Bender, White Plains (Stephen J. Cassels of counsel), for appellant.
CellinoLaw LLP, New York (John Lavelle of counsel), for respondent.
Webber, J.P., Mazzarelli, Gonza´lez, Scarpulla, Pitt, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about May 11, 2020, which denied defendant C & P's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Defendant C & P failed to establish its prima facie entitlement to summary judgment. Contrary to defendant's contention that plaintiff did not adequately identify the cause of his fall, plaintiff testified that he saw ice on the ground immediately after he slipped and fell and described the ice as hard and the ice patch as larger than his foot ( Lakins v. 171 E. 205th St. Corp., 118 A.D.3d 451, 987 N.Y.S.2d 345 [1st Dept. 2014] ; see also Dixon v. New York City Hous. Auth., 176 A.D.3d 404, 110 N.Y.S.3d 108 [1st Dept. 2019] ). C & P failed to establish that ice could not have existed., C & P's own meteorological expert stated that there were multiple black ice warnings starting the day before plaintiff's accident and that ice had formed because of radiational cooling (see Perez v. Canale, 50 A.D.3d 437, 855 N.Y.S.2d 488 [1st Dept. 2008] ; Buroker v. Country View Estate Condominium Assn., Inc., 54 A.D.3d 795, 864 N.Y.S.2d 468 [2d Dept. 2008] ).
C & P also failed to establish an absence of constructive notice of the alleged icy condition. Despite the meteorological data showing that snow remained on the ground after a month of heavy snowfall, C & P failed to present any evidence that it had inspected the area, cleaned it of snow and ice, or appropriately treated it with salt or sand, before the time of plaintiff's accident (see Perez v. New York City Hous. Auth., 114 A.D.3d 586, 981 N.Y.S.2d 59 [1st Dept. 2014] ; Ndiaye v. NEP W. 119th St. LP, 124 A.D.3d 427, 428–429, 1 N.Y.S.3d 50 [1st Dept. 2015] ; Mike v. 91 Payson Owners Corp., 114 A.D.3d 420, 979 N.Y.S.2d 332 [1st Dept. 2014] ).
In any event, plaintiff raised triable issues of fact in opposition through his meteorologist's report, which confirmed that the National Weather Service issued black ice warnings for the date of the accident (see Jones v. New York City Hous. Auth., 157 A.D.3d 426, 67 N.Y.S.3d 200 [1st Dept. 2018] ; Lakins, 118 A.D.3d at 451, 987 N.Y.S.2d 345 ). Plaintiff's meteorologist's opinion that the ice formed as a result of improper snow removal was not purely speculative (cf. Killeen v. Our Lady of Mercy Med. Ctr., 35 A.D.3d 205, 206, 827 N.Y.S.2d 19 [1st Dept. 2006] ).