Opinion
Index No. 31645/2018E NYSCEF Doc. No. 43
09-06-2022
ROMERCI MOSQUEA, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants
Unpublished Opinion
DECISION /ORDER
HON. MITCHELL J. DANZIGER, J.S.C.
Recitation as Required by CPLR §2219(a): The following papers were read on this Motion to Amend and Serve:
Papers Numbered
Notice of Motion, Statement of Material Facts, Affirmation in Support and Exhibits ........................................................................... 1
Affirmation in Opposition with Exhibits and Statement of Material Facts............................................................................ 2
Reply Affirmation................................................................................. 3
Upon the foregoing cited papers, the Decision/Order of this Court is as follows:
Motion by defendant, New York City Housing Authority (hereinafter "NYCHA") for an order pursuant to CPER §3212 granting summary judgment in favor of NYCHA is decided as follows:
Plaintiff alleges in her pleadings that on March 8, 2018, she slipped and fell on ice at the corner of Noble Avenue and Story Avenue in the pedestrian ramp by the bus stop. According to both plaintiffs testimony and the certified weather records submitted, there was a snowstorm on March 7, 2018. According to defendant, NYCHA's expert report, on March 7, 2018, continuous light rain fell from 12:50 a.m. to 2:05 a.m., then continuous light snow fell from 2:05 a.m. to 6:55 a.m., then continuous light rain and light snow fell from 6:55 a.m. to 11:40 a.m.. At 11:40 a.m., continuous light to occasionally moderate and heavy snow fell until 7:56 p.m.. Thereafter, continuous light rain and snow fell from 7:56 p.m. through 9:20 p.m.. On March 7, 2018, temperatures fluctuated between 34 and 38 degrees Fahrenheit. On March 8, 2018, occasional light snow fell from 1:00 a.m. to 1:30 a.m.. Plaintiff s accident occurred at approximately 6:40 a.m. on the morning of March 8, 2018.
At her 50-h, plaintiff testified that there was a lot of snow where she fell. She did not see any signs of salt or sand on the ground. She slipped on snow and ice. She saw snow but it felt slippery like ice. The snow was fresh fluffy white snow. She did not know how much snow covered the icy condition at the spot where she slipped. She was not able to see patches of ice under the white snow. At her deposition, plaintiff testified that at the location where she fell the snow was approximately ankle deep and fluffy. The snow was a mix of white and dirty snow. Prior to slipping she did not observe ice. The snow was flat as if it had been stepped on but when she slipped, she stepped in an area where no one else had stepped.
Non-party witness, Angel Figueroa, witnessed plaintiff s fall from about half a block away. He testified that on the day prior to the accident, when walking where plaintiff fell, the area was covered in snow. The day prior, the pedestrian ramp where plaintiff fell was covered in ice, water, and a lot of snow. He testified that he did not see a cleared path. The snow was a little lower from where people were walking. There was no signs of salt or sand. On the day of plaintiffs fall, the sidewalk area was very' snowy and slippery with a lot of ice. There was no path cleared. The snow had been tramped down by people walking on it and it was snowing at the time she fell. The pedestrian ramp was covered with water, ice and snow and the ramp itself was ice.
NYCHA's witness, Ruben Rosado, Supervisor of Grounds, testified that he was working on the 7lh and 8th of March 2018. His normal hours at that time were 8:00 a.m. to 4:30 p.m., but if he was mandated to stay late for snow, he could have stayed as late as 8:00 p.m.. On March 7, 2018, Mr. Rosado and Supervisor of Caretakers, Mr. Camacho and their staff reported to work at 7:00 a.m. for "snow removal." Perimeter walkways and sidewalks were plowed. Mr. Rosado drove around the development checking the interior and perimeter walkways and public sidewalks adjacent to the development for dangerous conditions. If he observed an icy condition, they would have had the caretakers apply salt and sand to the area. When Mr. Rosado left the development at 8:00 p.m. on March 7, 2018, to his knowledge, there were no icy conditions. Mr. Rosado returned to work on at 7:00 a.m. on March 8, 2018, to resume snow removal operations.
Defendant NYCHA moves for summary judgment, arguing they are not liable because they had no duty to clear the snow and ice until after the storm ended, they did not create or exacerbate the hazardous condition, they did not have a reasonable amount of time to remove the snow and ice before plaintiff s accident, and because the accident occurred on a pedestrian ramp by the curb.
Plaintiff opposes NYCHA's motion on the grounds that they failed to establish that they lacked notice of the hazardous condition, they did not meet their prima facie burden, that as the landowner, they had a duty to property maintain their property, and there is a question of fact as to whether NYCHA exacerbated the hazard by failing to properly remove the snow and ice.
The movant in a motion for summary judgment must provide sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law. (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985)). The non-moving party is entitled to every favorable inference and need only show that a triable issue of fact exists. (International Rescue Committee v. Reliance Ins. Co., 230 A.D.3d 641 (1st Dept. 1996)). A motion for summary judgment should not be granted where there are facts in dispute, where there arc conflicting inferences that may be drawn from the evidence, or where there are issues of credibility to determine. (Scott v. Long Island Power Authority, 294 A.D.2d 348 (2nd Dept. 2002)). Once movant has met their initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence to establish the existence of a triable issue of fact. (Zuckerman v. City of New York, 49 N.Y.2d 557 (1980)).
§7-210 of the NY Administrative Code imposes duties on property owners to maintain sidewalks in a reasonably safe condition, and liability is imposed for negligent failure to remove snow. However, the intent behind §7-210 was to urge property owners to comply with their obligations under §16-123. (Ortiz v. City of New York, 67 A.D.3d 21, 26 (1st Dept. 2009)). Moreover, "the language of section 7-210 mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code sections 19-152 and 16-123.'' (Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 521). Further, while a landowner owes a baseline duty of care to keep their property in a reasonably safe condition, they "will not be held liable in negligence for a plaintiff s injuries sustained as a result of an icy [or snowy] condition occurring during an ongoing storm or for a reasonable time thereafter." (Solazzo v. New York City Transit Auth., 6 N.Y.3d 734, 735 (2005)). A reasonable time is the period where the municipality should have taken notice of the icy condition and, in the exercise of reasonable care, remedied it by clearing the sidewalk or otherwise eliminating the danger. (Valentine v. City of New York, 86 A.D.2d 381, 383 (1st Dept 1982)). Specifics for what constitutes a reasonable time are outlined in §16-123. (See Rodriguez v. New York City Housing Authority, 59 A.D.3d 299 (1st Dept. 2008)).
§16-123(a) states that: "[e]very owner ... having charge of any building or lot of ground in the city, abutting upon any street where the sidewalk is paved, shall, within four hours after the snow ceases to fall ... remove the snow or ice ... the time between nine [p.m.] and seven [a.m.] not being included in the above period of four hours." In this sense, §16-123 operates as a carve-out to §7-210, offering a grace period for liability. A defendant can then meet its prima facie burden of entitlement to summary judgment with evidence that the plaintiffs accident occurred as a result of precipitation that accumulated during the grace period. Notably, the grace period extends to 11:00 a.m. if the precipitation occurred overnight. (Schron v. Jean's Fine Wine & Spirits, Inc., 114 A.D.3d 659, 660 (2d Dept. 2014) (owner had until 11:00 a.m. to remove snow and ice where precipitation stopped at 5:00 a.m.)). Additionally, property owners cannot be held liable for injuries sustained prior to the expiration of the four-hour grace period to clear snow and ice. (See e.g., Zhou v. 131 Chrystie St. Realty Corp., 125 A.D.3d 429, 430 (1st Dept. 2015) (where property owner had until 11:00 a.m. to clear snow and ice from sidewalk, and that because "[the] period had not yet expired at the time that plaintiff fell, defendants established their entitlement to judgement as a matter of law")).
Here, NYCHA has made a prima facie showing that they lacked a reasonable opportunity to clear the snow. Expert meteorologist testimony explains that "[this] winter storm caused rain and snow to fall, with some occasional and extended lulls, from approximately 9:50 p.m. on March 6th, 2018, through 1:30 a.m. on March 8th, 2018 (day of the incident)." (See Exhibit M, ¶ 33(b)). Additionally, the Forensic Weather Investigation shows that on the day before the incident (March 7), it continuously snowed at varying amounts between 11:40 a.m. and 7:56 p.m., with light rain and snow falling between 7:56 p.m. and 9:20 p.m. (See Exhibit BB, pages 14-15). Additionally, there were "trace" amounts of light snow and rain between 1:00 and 1:30 a.m. on March 8. (See Exhibit BB, page 17). Even if we do not factor in the "trace amounts," which by all accounts can be considered for an evaluation of "reasonable time," the clock would start at 7:56 p.m. and stop at 9:00 p.m., resuming at 7:00 a.m. (See Ross v. Lewis, 181 A.D.3d 423 (1st Dept. 2020)). Defendant, NYCIIA would have had until 10 a.m. to clear the snow. Plaintiffs accident occurred at approximately 6:40 a.m., during the time that NYCHA had no duty to conduct snow removal. Plaintiff also makes the claim that the snow ceased falling at 6 p.m. the night before the incident, even though there is little basis to support that notion, and yet that still does not extend past the §16-123 grace period. Duc to the storm in progress and the snow that fell during the time in which property owners are not required to remove snow and ice, NYCIIA did not owe plaintiff a duty.
Plaintiff submits that NYCHA could have "created or exacerbated" the hazardous condition because on March 7, 2018, the grounds supervisor Ruben Rosado and his staff reported to work for snow removal efforts. Throughout that day, Mr. Rosado drove around the development checking the walkways and sidewalks for dangerous conditions. If Mr. Rosado has observed a slippery' or icy condition, he would have had the area salted and sanded. However, pursuant to plaintiffs own testimony the sidewalk where she fell "had not been shoveled, sanded or salted at the time of her accident" which is corroborated by eye-witness, Mr. Figueroa. As such, it would just be speculation that any snow removal that NYCHA performed the day before plaintiffs accident created or exacerbated the alleged hazardous condition. Speculation is insufficient to defeat the motion for summary judgment. Zuckerman, 49 N.Y.2d at 562 ("[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient [to defeat a summary judgment motion]."). Additionally, "plaintiffs contention that an issue of fact exists as to whether NYCHA's snow and ice removal work created or exacerbated a dangerous condition is directly refuted by her own testimony that the stairway had not been shoveled, sanded or salted at the time of her accident." Giron v. New York City Housing Authority, 187 A.D.3d 603 (1st Dept. 2020).
Any claim alleging that NYCHA was put on notice by plaintiff is misguided, as those factors are only applicable when a property owner has a duty of care. (See Harbison v. New York City Transit Auth., 147 A.D.3d 693 (1st Dept. 2017)). That duty only arises once the §16-123 grace period has ended, which it has not, and NYCHA is under no duty to perform work until that grace period from §16-123 ends.
Finally, plaintiffs testimony that she "slipped and fell on a pedestrian ramp near the curb" provides even further justification for granting NYCHA's motion for summary judgment, as "[t]hc abutting landowner is not responsible for maintaining and repairing [pedestrian] ramps." (See Statement of Material Facts, ¶8; Ortiz v City of New York. 67 A.D.3d 21,23, 27 (1st Dept 2009) (citing Admin. Code § 19-112, which classifies ramps as an element of the curb)).
In consideration of the foregoing, NYCHA's motion for summary judgment pursuant to §3212 is granted, and the complaint is dismissed as it pertains to them.
This constitutes the decision and order of the court.