Opinion
No. 5022/2010.
2012-03-21
Edward MULLER, Plaintiff, v. Richard GROVER and Tabithe Grover, Defendants.
Joseph Michael Ingarra, Esq., Kingston, for Plaintiff. David B. Manson, Esq., Goergen, Manson & Huenke, Esqs., Middletown, for Defendant Richard Grover.
Joseph Michael Ingarra, Esq., Kingston, for Plaintiff. David B. Manson, Esq., Goergen, Manson & Huenke, Esqs., Middletown, for Defendant Richard Grover.
JAMES D. PAGONES, J.
The following papers were read and considered on the motion of defendant Richard Grover for summary judgment dismissing the complaint:
Defendant's Notice of Motion for summary judgment
Manson Affirmation in Support
Grover Affidavit in Support
Exhibits A–H
Memorandum of Law
Muller Affidavit in Opposition
Ingarra Affirmation in Opposition
Exhibits A–I
Manson Reply Affirmation
On January 25, 2010, plaintiff responded to a call made by defendant Tabithe Grover for roadside assistance at the Columbia home of her father, defendant Richard Grover. Tabithe Grover's car, located at the top of her father's sloped gravel driveway, would not start. After hooking up the car to his tow truck, plaintiff walked around the front of his truck and alleges that he slipped and fell in the gravel driveway on ice and frozen snow. As a result, plaintiff commenced this action in Ulster County for personal injuries sustained as a result of defendants' negligence.
Plaintiff consented that venue be changed from Ulster to Dutchess County presumably because the basis of venue, i.e. plaintiff's residence, is located in Dutchess County, not Ulster ( see moving papers at Ex C).
Specifically, plaintiff claims that defendants failed to ameliorate or warn plaintiff about the dangerous icy condition ( see moving papers at Ex A). Actual notice is predicated on the fact that Tabithe Grover had to go to the car before calling for help and had sufficient time to put down salt or another substance to remedy the icy condition. Constructive notice is alleged “in that it had snowed and or sleeted sometime previously to the incident and it was very icy on that day ... [and] it is common knowledge that ice accumulates as a result of snow and or sleet” ( id. at Ex D ¶¶ 9, 12, 14, 15).
After joinder of issue by defendant Richard Grover and discovery, defendant Grover now moves for summary judgement dismissing the complaint insofar as asserted against him. Defendant argues that there is no evidence he created the icy condition or had actual or constructive notice of the icy condition. In support, defendant relies upon deposition testimony of the parties and the non-party witness Bonnie Grover, Richard's spouse ( see moving papers at Exs E–H).
Although defendant Tabithe Grover has not appeared in the action, there does not appear to be any cognizable claim asserted against her.
Richard Grover was not present at the time of the incident ( see id. at Ex F, p 8; Grover Affidavit in Support ¶ 2). Neither Grover's wife nor daughter noticed any icy or otherwise slippery conditions in the driveway that morning ( see id. at Ex G, p 9; Ex H, p 12). Moreover, according to defendant, “plaintiff testified that he had not seen ice prior to the accident and, in fact, he did not see any ice after the accident” (Memorandum of Law, p 2; see also Manson Reply Affirmation ¶ 9). Consequently, moving defendant maintains that no dangerous condition existed and, assuming plaintiff did slip and fall on ice, any finding as to whether an icy condition existed for a sufficient length of time to impart constructive notice upon defendant would be purely speculative.
In opposition, plaintiff argues that the temperature fluctuations in the days after prior snow fall and snow removal efforts and preceding his fall were sufficient to put defendant on notice of an icy condition in his driveway. In support, plaintiff relies on deposition testimony and meteorological evidence.
Plaintiff testified that when he arrived at defendant's home between 9:15 and 9:30 in the morning, it had been raining out ( see moving papers at Ex E, p 18). When he pulled up the wide sloping driveway ( see opposition papers at Ex H), “there was a pile of snow” ... “left from a plow” behind defendant Tabithe Grover's car which sat at the top of the gravel driveway ( see moving papers at Ex F pp 18, 21). Plaintiff began to hook up the car to the tow truck from the driver's side of the truck. He then had to get to the other side of his truck, but could not walk behind the car to get there because the driveway “was piled with snow” ( id., p 23). Instead, he had to walk around the front of his truck and took a “flying leap” ( id., p 21). Plaintiff testified that he slipped on “like dry ice ... black ice ... [i]t was in the gravel” ( id.). He further explained ( id., pp 24–25):
I determined it was probably ice underneath. I mean, wet and then froze, or maybe when they were plowing the driveway whatever got warm and melted then refroze. Because it was kind of cold, it was very cold. It was twenty-something degrees at night. It was really cold.
Defendant Grover testified that there had been a lot of snow and “nasty weather” that winter ( id. at Ex F, p 8). Although he had the driveway plowed professionally on occasion, he used a snow blower to clean the driveway from the snow storm immediately preceding the incident ( id.). Plaintiff submitted an affidavit stating that when a snow blower is used on gravel, the skid has to be raised an inch and a half so as “not to pick up gravel or destroy the auger in the process” (Muller Affidavit in Opposition ¶ 12). As a result, snow is left on the gravel ( see d. ¶ 13).
Plaintiff also submitted meteorological data depicting widely varying fluctuations in temperatures from below freezing to well above freezing for 11 days prior to plaintiff's accident ( see opposition papers at Ex F).
In slip and fall cases involving snow and ice, a property owner will not be held liable unless the owner created the dangerous condition or had actual or constructive notice of the dangerous condition ( see Oliveri v. GM Realty Co., LLC, 37 AD3d 569 [2d Dep't 2007]; Fahey v. Serota, 23 AD3d 335 [2d Dep't 2005] ).
Initially, on a motion for summary judgment, “the proponent ... 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 issue of fact.” However, once movant makes a sufficient showing, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ). It is axiomatic that summary judgment is a drastic remedy and should not be granted where triable issues of facts are raised and cannot be resolved on conflicting affidavits ( see Millerton Agway Coop. v. Briarcliff Farms, Inc., 17 N.Y.2d 57, 61 [1966];Sillman v. 20th Century–Fox Film Corp., 3 N.Y.2d 395, 404 [1957] ).
The gravamen of defendant's argument in support of summary judgment is that there was no icy condition at all. Therefore, defendant could not have had actual or constructive knowledge of any such condition. Further, even if there were an icy condition, defendant further maintains that any knowledge as to how long it had existed would be purely speculative, and, therefore, insufficient to defeat summary judgment. Assuming defendant's mere denial that he created or knew of any dangerous condition on his property-despite the “nasty” winter, pile of snow on top of his sloping driveway, and the fluctuating temperature-is sufficient to make a prima facie case, plaintiff has nevertheless raised a triable issue of material fact.
Despite defendant's contrary argument, plaintiff testified that he slipped and fell on black ice ( see p 4, supra ). Plaintiff arrived at defendant's home early in the morning in the rain after a night in which the temperature had been below freezing.” He was prevented from accessing the passenger side of his truck from the top of the driveway because there was a large pile of snow located there. This, coupled with meteorological evidence demonstrating widely fluctuating temperature conditions for a period of 11 days prior to the accident and five days after the last snow fall immediately preceding plaintiff's fall is sufficient to raise an issue of fact as to whether defendant adequately cleared the gravel driveway with a snow blower and/or whether the snow pile created by prior snow removal efforts froze and refroze, thus creating an icy condition on the sloping gravel surface ( see Braun v. Weissman, 68 AD3d 797 [2d Dep't 2009]; Ricca v. Ahmad, 40 AD3d 728 [2d Dep't 2007] ; Grillo v. Brooklyn Hosp., 280 A.D.2d 452 [2d Dep't 2001] ).
“... neither [plaintiff's] testimony nor his Affidavit state that there was ice within and underneath the gravel. He testified that he never saw any ice. To the extent that the Affidavit alleges that ice was present, the Affidavit is clearly designed to created a feigned factual issue to avoid the consequences of his prior deposition testimony [citations omitted]” (Manson Reply Affirmation ¶ 9). In any event, even if plaintiff did not see any ice, plaintiff submitted sufficient competence evidence as to its existence and the reason for his otherwise unexplained slip and fall.
In Ricca, the plaintiff's theory of liability was that he slipped and fell on “black ice” in the parking lot adjacent to defendants' store. Plaintiff did not see the ice prior to his fall. Discounting plaintiff's photographic evidence depicting the icy condition, the motion court found that plaintiff's claim that defendants had caused or created the ice patch through incomplete snow removal efforts was based on “speculation and [was] insufficient to defeat a motion for summary judgment” (2005 WL 6061341 [Sup Ct Suffolk County 2005] ). Finding an issue of fact, the Appellate Division reversed the order of the motion court.
Based on the foregoing, it is hereby ordered that defendant's motion for summary judgment is denied.
The foregoing constitutes the decision and order of the court.