Opinion
02-CV-0620E(Sr).
September 21, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiffs filed this personal injury/Federal Tort Claims Act ("FTCA") action on August 29, 2002. Plaintiffs allege that Joseph V. Raimond ("Raimond") slipped-and-fell at Veteran's Administration Hospital (the "Hospital"). The United States was substituted as defendant in place of the Hospital and of the Department of Veteran's Affairs. The United States filed a motion for summary judgment on January 12, 2004. This matter was argued and submitted on September 3, 2004. For the reasons set forth below, the United States' motion for summary judgment will be granted in part and denied in part.
28 U.S.C. §§ 1346(b), 2671-2680.
The United States' motion was just recently argued because, inter alia, (1) plaintiffs unsuccessfully attempted to have the defendant's motion stricken as untimely, (2) plaintiffs unsuccessfully attempted to file a cross-motion for summary judgment several weeks after the deadline and (3) it has been adjourned several times.
Rule 56 (c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid.; FRCvP 56(e).
With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law." Anderson, at 248.
Anderson, at 248; see also id. at 252 ("The mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].")
Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." Indeed, summary judgment is granted "begrudingly in negligence cases, which by their very nature tend to raise factual questions." Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the nonmoving party are insufficient to defeat a well-grounded motion for summary judgment.
St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255).
Cernobe v. United States, 1991 WL 185712, at *1-2 (W.D.N.Y. 1991) (denying summary judgment in slip-and-fall case involving ice on walkway).
Goenaga, supra note 4, at 18.
Raimond fell on snow/ice on the roadway adjacent to the Hospital's outpatient clinic entrance located at 3495 Bailey Avenue, Buffalo, N.Y. on December 25, 2001 at approximately 2:30 p.m. when he was taking his father home from the Hospital. Gail A. Raimond asserts a claim for loss of consortium resulting from her husband's injury. The United States argues that Mrs. Raimond's claim should be dismissed because she failed to submit an administrative tort claim before commencing this suit. This Court agrees. Pursuant to 28 U.S.C. § 2675(a), a FTCA claimant "shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail." Although Raimond submitted a Standard Form 95 ("SF-95") to the Department of Veteran's Affairs, such does not satisfy the requirement that Mrs. Raimond file a SF-95 with respect to her loss of consortium claim. Indeed, although the SF-95 filed by Raimond contained Mrs. Raimond's name, it did not contain, inter alia, her signature or date of birth — information necessary for Raimond's SF-95 to have been submitted on behalf of Mrs. Raimond as well. Accordingly, the United States' motion for summary judgment will be granted in part and Mrs. Raimond's claim will be dismissed for lack of subject matter jurisdiction.
McNeil v. United States, 508 U.S. 106, 113 (1993) (holding that the filing of an administrative claim is a jurisdictional prerequisite under the FTCA); Williams v. United States, 2004 WL 906221, at *3 (S.D.N.Y. 2004) ("Section 2675(a) deprives a federal court of subject matter jurisdiction to entertain an FTCA claim until either six months have elapsed since the filing of a claim or the agency has issued a final denial of the claim."); Rodriguez v. United States, 2003 WL 21961121, at *2 (S.D.N.Y. 2003) (dismissing spouse's derivative claims because she failed to file a SF-95 and because her spouse's SF-95 did not refer to her loss of consortium claim); Wisner v. United States, 154 F.R.D. 39, 42-43 (N.D.N.Y. 1994) (dismissing husband's derivative claim for failure to file separate administrative claim or to include the loss of consortium claim within his wife's administrative claim because the "mere mention of his name within his wife's administrative claim" is insufficient to put the government on notice of his claim).
Sciolino v. United States, 2001 WL 266024, at *4 (W.D.N.Y. 2001) ("An administrative claim containing the names, dates of birth and signatures of both a principal claimant and his spouse * * * is sufficient to place the United States on notice that a derivative claim is being brought by the named spouse regardless of whether a separate set of facts regarding the derivative claim and/or a separate sum certain are alleged for such spouse.").
This Court will now address Mr. Raimond's claim. As the Court of Appeals has noted, "[t]he liability of the federal government under the FTCA is generally determined by state law." Consequently, New York negligence law applies. A central issue is whether there was a storm in progress when Raimond fell. This Court, however, finds that the United States may not avail itself of the storm in progress defense and that several genuine issues of material fact exist, thus requiring this Court to deny the United States' motion for summary judgment to the extent that it seeks to dismiss Raimond's claims.
Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1997); see also Nolan v. United States, 2001 WL 392086, at *2 (W.D.N.Y. 2001) (applying Mortise in a slip-and-fall case involving ice on a walkway); Cernobe, supra note 7, at *1 (holding that, pursuant to 28 U.S.C. § 1346(b), "the substantive law of the State of New York" controls in a FTCA action).
Judge Arcara described the storm in progress doctrine as follows:
"Under New York law, when ruling on a tort action involving a plaintiff's fall on snow or ice, a special rule comes into play. Under the `storm in progress' doctrine, `a landowner has a reasonable time in which to address a storm-related snow or ice condition on its property subsequent to the cessation of the storm and is not required to take any corrective actions while a storm is still in progress.' Thus, in cases where plaintiffs have sued for injuries sustained from falling on snow or ice, New York courts have granted judgment in favor of the defendants if evidence shows that a storm was in progress at the time of plaintiffs' fall." (citation omitted). Olejniczak v. E.I. DuPont de Nemours Co., 79 F. Supp. 2d 209, 216 (W.D.N.Y. 1999) (" Olejniczak II").See also Sanders v. Wal-Mart Stores, Inc., 780 N.Y.S.2d 417, 418-19 (3d Dep't 2004) ("A defendant employing the `storm in progress' defense on summary judgment must show a prima facie entitlement to judgment based on that defense and, if that burden is met, the opponent of the motion must come forward with competent, admissible evidence establishing the existence of a triable issue of fact") (citations omitted); Powell v. MLG Hillside Assocs., 290 A.D.2d 345, 345 (1st Dep't 2002) ("The [storm in progress] rule is designed to relieve the worker(s) of any obligation to shovel snow while continuing precipitation or high winds are simply re-covering the walkways as fast as they are cleaned, thus rendering the effort fruitless.").
The United States objected at oral argument to the sufficiency of Raimond's affidavit filed in opposition to the United States' motion for summary judgment. This Court, however, did not rely on Raimond's affidavit. The United States' further objected to Raimond's Statement of Material Facts filed on April 6, 2004 pursuant to Rule 56.1 of the Local Rules of Civil Procedure ("LRCvP 56.1 Statement"). Although the United States' objection is well made, this Court has nonetheless opted to "conduct an assiduous review of the record" and has disregarded Raimond's purported LRCvP 56.1 Statement. Holtz v. Rockefeller Co., 258 F.3d 62, 73 (2d Cir. 2001).
First, the United States' expert based his conclusions on climatological conditions at the Buffalo-Niagara International Airport (the "Airport"), which is between three and five miles from the Hospital. The United States' expert merely asserted that the weather data from the Airport "is highly representative of the conditions at the accident site." Climatological conditions, however, may vary from one locale to another situated three to five miles away. Consequently, the United States' expert's report is insufficient to demonstrate the weather conditions at the Hospital when Raimond fell. Accordingly, there is a genuine issue of material fact whether there was a storm in progress at the Hospital when Raimond fell.
The United States' expert stated that the Airport was 3.0 miles (subsequently revised to 3.35 miles) from the Hospital. At oral argument, plaintiff's counsel contended that the weather observatory at the Airport was five miles away from the Hospital. In any event, this Court takes judicial notice of the fact that the Hospital is approximately five miles away from the National Weather Service ("NWS) observatory located at 587 Aero Drive, Buffalo, N.Y. 14225-1405 and approximately four miles away from the section of the Airport closest to the outbound end of the Kensington Expressway where NWS weather data collection equipment is located. See http://www.mapquest.com/directions/main.adp?go= 1do=nwun=m2tabval=addresscl=ENct=NA1tabval=address1y=US1a=587 +Aero+Drive1c=Buffalo1s=ny1z=142251ah=2y=US2a=3495+Bailey+ Avenue2c=Buffalo2s=ny2z=2ah=idx=0id=414b24e7-00272- 02260-400c2548aid=414b24e7-00273-02 260-400c2548 (stating that the driving distance between the Hospital and the weather observatory is 6.81 miles, but indicating that a straight line between the same two points is approximately 5.0 miles and that the distance between the Hospital and the outbound end of the Kensington Expressway is approximately 4.0 miles); http://www.erh.noaa.gov/ersd/buf.htm (stating, inter alia, that the "airport is three miles east of the Buffalo city line on Genesee Street"); Olejniczak II, supra note 12, at 214 n. 6 (taking judicial notice of the distance between the Buffalo Airport and the site of an accident).
Aff. of Michael Cejka ¶ 4 (emphasis added) ("The cited weather data in this report is highly representative of the conditions at the accident site due to close proximity. The distance from the accident site to the Buffalo-Niagara International Airport is about 3.0 miles."). The United States' expert's report fails to establish as a matter of law whether there was a storm in progress at the Hospital when Raimond fell. See Campagnano v. Highgate Manor of Rensselaer, Inc., 299 A.D.2d 714, 715 (3d Dep't 2002) (finding that defendants "satisfied their prima facie burden of proving that there was a storm in progress at the time of the incident" where their meteorologist opined that a storm was in progress "within a reasonable degree of meteorological certainty"); Ruck v. ISS Int'l Serv. Sys., Inc., 236 A.D.2d 702, 702 (3d Dep't 1997) (accepting a meteorologist's statement that "a storm was in progress at the subject location"); Lopez v. Picotte Cos., 223 A.D.2d 823, 824 (3d Dep't 1996) (noting that, although the defendant's meteorologist based his conclusions upon "observations made at Albany County Airport, located a few miles from defendant's property," the court noted that the meteorologist's "report further indicated that the precipitation was widespread, covering several counties including Albany County"); Parker v. Rust Plant Servs., Inc., 780 N.Y.S.2d 230, 232 (3d Dep't 2004) (rejecting meteorologist's affidavit because it did "not specifically address the exact location where plaintiff fell"); cf. Krutz v. Betz Funeral Home, Inc., 236 A.D.2d 704, 704-705 (3d Dep't) (accepting a meteorologist's statement that a storm occurred "in the Canajoharie region"), lv. denied, 90 N.Y.2d 803 (1997). The United States' expert failed to state that his conclusions were based on a reasonable degree of meteorological certainty. More importantly, however, he did not expressly state that the storm conditions observed at the Airport extended throughout the Buffalo area or that a storm was in progress at the Hospital. Although the United States' expert prepared a supplemental affidavit indicating, inter alia, that radar records indicate that there was a storm occurring at the Hospital on the morning and afternoon of December 25, 2001, Cejka Supp. Aff. at ¶¶ 10-12, this merely creates a genuine issue of material fact whether a storm was occurring in light of Raimond's deposition testimony.
Olejniczak v. E.I. DuPont de Nemours Co., 998 F. Supp. 274, 280-281 (W.D.N.Y. 1998) (" Olejniczak I") ("Defendant has submitted official meteorological records for January, 1994, obtained from the National Weather Service and compiled from observations taken at the Buffalo Airport. * * * Based on this evidence, I find that there is, at best, a factual issue as to whether defendant is entitled to the benefit of the `storm in progress' rule. For one thing, common local knowledge dictates that meteorological observations of conditions on a winter day at the Buffalo Airport in Cheektowaga are not necessarily conclusive of the conditions on the same day in Tonawanda."). But see Olejniczak II, supra note 12, at 214 n. 6 (inferring that "the general weather conditions at the Buffalo Airport were substantially similar to those at the DuPont plant" located ten miles away and granting judgment in favor of defendant after a bench trial). Olejniczak I is applicable because it involved defendant's summary judgment motion involving issues similar to those raised by the United States here. Moreover, Olejniczak II was issued after a fifteen day bench trial and it is not clear that the evidence before the Court in Olejniczak I was the same evidence that was before the Court in Olejniczak II.
Second, even assuming arguendo that the United States may rely on climatological data from the Airport to establish weather conditions at the Hospital, Raimond rebutted such where he testified at his deposition that there was no snow on his car when he retrieved it immediately preceding his fall — thus indicating that no snow had fallen at the Hospital from 11:00 a.m. until he retrieved his car at 2:30 p.m. and fell after loading his father into the car. Consequently, the conflict between Raimond's testimony and the United States' expert report establishes a genuine issue of material fact that must be resolved by the trier of fact — especially in light of the fact that summary judgment is "begrudgingly" granted in negligence actions. The United States also contends that the existence of a lull after a storm does not eliminate the storm in progress defense. The United States cites Krutz for the proposition that "[e]ven if there was a lull or break in the storm around the time of plaintiff's accident, this does not establish that defendant[s] had a reasonable time after the cessation of the storm to correct hazardous snow or ice-related conditions." What constitutes a reasonable time for the Hospital to clear the emergency entrance, however, is a genuine issue of material fact. The case law cited by the United States is distinguishable and not necessarily instructive as to what constitutes a reasonable time to clear ice and snow from a hospital's emergency entrance. Accordingly, the United States has not established that it is entitled to the storm in progress defense and the "record calls for a determination by a trier of facts, not a rote application of a rule of law."
Raimond Dep. at 18, 23-25, 28, 30-33, 43-46.
Olejniczak I, supra note 16, at 281 ("[Plaintiff's] unrefuted deposition testimony suggests that it was partly sunny, clear and extremely cold, with light winds and no blowing snow, during the entire time that he was at the plant. This evidence alone makes it `impossible to conclude as a matter of law that a storm was in progress at the time of plaintiff's fall.'") (citation omitted); Sanders, supra note 12, at 418-419 (affirming denial of summary judgment because plaintiff testified that it was not snowing when he fell, which was corroborated by two nonparty witness affidavits and a meteorologist's report); Schleifman v. Prime Hospitality Corp., 246 A.D.2d 789, 790 (3d Dep't 1998) (affirming denial of summary judgment where plaintiff testified that there was no storm in progress when he fell and "proffered a meteorological report, which is of little evidentiary value, for it details the weather conditions in the Albany area, some 20 to 30 miles from the accident site"); Cappola v. Michael's Banquet Facility, 778 N.Y.S.2d 645, 646 (4th Dep't 2004) (affirming denial of summary judgment because the parties produced conflicting evidence as to whether there was a storm in progress) (citation omitted). Likewise, the evidence is conflicting with respect to the weather conditions at the Hospital at the time of Raimond's accident and there is thus a genuine issue of material fact whether the Hospital had a reasonable amount of time to rectify the icy conditions allegedly responsible for Raimond's injuries. Inasmuch as Raimond has proffered more than speculation, Whitt v. St. John's Episcopal Hosp., 258 A.D.2d 648, 649 (2d Dep't 1999) is distinguishable.
Cernobe, supra note 7, at *1-2; Olejniczak I, supra note 16, at 281 ("[S]ummary judgment is rarely granted in negligence cases.") (citing Stagl v. Delta Airlines, Inc., 52 F.3d 463, 470-471 n. 5 (2d Cir. 1995)).
Krutz, supra note 15, at 705 (emphasis added).
Olejniczak I, supra note 16, at 279 ("[T]here is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances, an issue which can rarely be decided as a matter of law.") (citations omitted); Cappola, supra note 18, at 646 (affirming denial of summary judgment and noting that when "there is a period of inactivity after cessation of the storm, it becomes a question of fact as to whether the delay in commencing the cleanup was reasonable") (citation omitted); Tucciarone v. Windsor Owners Corp., 306 A.D.2d 162, 163 (1st Dep't 2003) (affirming denial of summary judgment because the "snowfall having ceased for several hours by the time of plaintiff's alleged accident on the morning of March 7, 1999, there is at least an issue of fact whether any delay by [building owner or its commercial tenant] in commencing their cleanup was reasonable") (citation omitted); Powell, supra note 12, at 346 (affirming denial of summary judgment because the storm had ceased two hours and twenty minutes before plaintiff fell, thus raising a genuine issue of material fact whether defendant had a reasonable amount of time to clean the snow); see also Bordonaro v. Bank of Blasdell, 285 N.Y. 606, 607 (1941) (holding that there was "a fair question of fact" where plaintiff fell in a bank entranceway when a storm had abated that morning "and that no snow was falling at the time of the accident"). This finding also disposes of the United States' alternative contention that Raimond failed to prove that the Hospital exercised reasonable care under the circumstances.
Powell, supra note 12, at 346.
Third, even assuming arguendo that there was a storm in progress, there is a genuine issue of material fact whether Raimond slipped on ice that had formed before the storm. The United States asserts that the snow that fell on December 25, 2001 could not have melted because the temperature never rose above 32 degrees Fahrenheit that day. The temperature did, however, rise above 32 degrees Fahrenheit on December 24, 2001. Consequently, there is a genuine issue of material fact as to whether (1) ice formed on December 24, 2001 and was not removed by the time that Raimond fell on December 25, 2001 and (2), for the reasons noted above, whether such failure was reasonable under the circumstances.
Even assuming the sufficiency of the United States' factual assertions concerning the weather conditions at the Hospital on December 24-25, 2001, which this Court questions as noted above, there is a genuine issue of material fact as to when the ice on which Raimond fell was formed.
Cejka Aff. at ¶¶ 6-8.
Torella v. Benderson Dev. Co., 307 A.D.2d 727, 728 (4th Dep't 2003) (affirming partial denial of summary judgment and concluding that "plaintiffs raised a triable issue of fact whether the icy condition existed prior to the storm") (internal quotation marks and citation omitted).
Fourth, there is a genuine issue of material fact as to whether the Hospital had constructive notice of the ice on which Raimond fell because (1) as noted above, the ice must have formed on December 24, 2004 and (2) it was located at the Hospital entrance — an area that was the "most important" of the "priority snow removal areas" at the Hospital. Given the priority nature of the emergency entranceway, the length of time that the ice upon which Raimond fell must have existed and the relatively small area that comprises the emergency entrance and abutting roadway, there is a genuine issue of material fact whether the Hospital "had constructive notice of the icy condition, i.e., whether that condition was visible and apparent and existed for a sufficient period of time prior to the accident to permit [those] defendants to discover it and take corrective action."
Aff. of Terry Majchrzak at ¶ 11 ("The VA [Hospital] had priority snow removal areas, the most important of which was the outpatient clinic area and adjacent roadway. This area was the first to be targeted for snow removal because it is the entrance and exit most often used by patients and employees and is the roadway that emergency vehicles use to gain access to the VA Hospital.")
The United States' expert described, inter alia, the following weather conditions observed at the Airport: (1) that December of 2001 was extremely mild and that many days were between 50 and 60 degrees Fahrenheit (Cejka Aff. at ¶ 5); (2) "[t]here was no measurable snow or ice on the ground prior to December 24 except on December 15, 2001 when 1.0 inche [sic] of snow was measured on the ground. That snow melted to a trace, a non-measurable amount by 7:00 a.m. December 16, 2001. There was neither snow nor ice on the ground at the Buffalo Airport from December 17 through 23, 2001." ( ibid.); (3) the "maximum temperature on December 24, 2001, was 36 [degrees Fehrenheit]" and that 20.5 inches of snow fell on December 24 after 7:00 p.m. ( Id. at ¶¶ 6-7); (4) the "maximum temperature on December 25, 2001, was 27 * * * therefore, there would have been no melting of the freshly fallen snow" ( id. at ¶ 8); (5) "[p]rior to the plaintiff's accident at 2:30 p.m., December 25, 2001, snow fell continuously except between 2:51 a.m. and 5:36 a.m." and that "[l]ight snow continued unabated from 9:54 a.m. until 2:25 p.m." ( id. at ¶ 9). Assuming arguendo that these conditions were also present at the Hospital, the ice must have formed on December 24, 2001 and existed during the lull that occurred from 2:51 a.m. to 5:36 a.m. Furthermore, such ice must have existed during the lull that, according to plaintiff's testimony, occurred between approximately 11:00 a.m. and 2:30 p.m. on December 25, 2001.
This Court focuses solely on the Hospital's duty to clear snow and ice from the emergency entrance within the time period relevant in this case. Accordingly, this case is distinguishable from many slip-and-fall cases involving areas that are less urgent than a hospital's emergency entrance. See, e.g., Tedesco v. Norfolk Southern Corp., 2002 WL 1628874 (W.D.N.Y. 2002).
Torella, supra note 25, at 728 (internal quotation marks and citation omitted); see also Nolan, supra note 11, at *2 ("To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it.") (citing Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837 (1986)); Stalker v. Crestview Cadillac Corp., 284 A.D.2d 977, 978 (4th Dep't 2001) (affirming denial of summary judgment because defendants "failed to prove that the ice formed so close in time to the accident that they could not reasonably have been expected to notice and remedy the condition") (quotation marks and citation omitted).
Inasmuch as this Court has found there to be a genuine issue of material fact whether the Hospital had constructive notice of the icy condition at the emergency entrance, this Court need not address whether the Hospital could also be found liable on the theory that it either created or exacerbated the dangerous condition. Furthermore, the cases cited by the United States in support of this contention are distinguishable.
Nolan, supra note 11, at *2 ("To establish a prima facie case of negligence in a `slip-and-fall' action, plaintiff must demonstrate either that defendant created the condition which caused the accident or that defendant had actual or constructive notice of such condition and failed to remedy the same.") (citing Gordon, supra, note 29, at 837)) (emphasis added).
The United States cites Quiles v. 200 West 94th St. Corp., 262 A.D.2d 169 (1st Dep't 1999) and Jimenez v. Cummings, 226 A.D.2d 112 (1st Dep't 1996) for the proposition that "a property owner has no duty to pedestrians to remove ice and snow that naturally accumulates upon the sidewalk in front of its premises." Def.'s Mem. of Law, at 14. These cases are distinguishable. First, Raimond was more than a mere pedestrian, he was an invitee to whom the Hospital owed a duty of care. See Lesyk v. Park Ave. Hosp., Inc., 29 A.D.2d 1043, 1043 (4th Dep't 1968) (following the rule that "one visiting a sick relative in a hospital is a business visitor, an invitee to whom the hospital owes a duty of maintaining its premises in a reasonably safe condition"); BLACK'S LAW DICTIONARY 832 (7th Ed. 1999) ("A person who has an express or implied invitation to enter or use another's premises, such as a business visitor or member of the public to whom the premises are held open. The occupier has a duty to inspect the premises and to warn the invitee of dangerous conditions."). Second, because the Hospital's grounds crew worked overtime on December 24-25, 2001 and "continuously" cleared snow from the emergency entranceway ( see, e.g., Majchrzak Dep., at 22-23, 87-88), there is a genuine issue of material fact whether the ice/snow upon which Raimond fell was a "natural accumulation" or whether it was post-plowing residual. Third, the emergency entranceway is not a sidewalk within the meaning of Jimenez or its progeny. See, e.g., Jacobs v. Pasquale, 281 A.D.2d 891, 892 (4th Dep't 2001) (holding that hospital was not liable for plaintiff's injuries, which were caused when she was struck by a car as she walked in the street to avoid a snow-covered sidewalk abutting a hospital because "[a]s a general rule it is only the municipality which may be held liable for the negligent failure to remove snow and ice from a public sidewalk") (internal quotation marks and citation omitted); B. Finberg, Annotation, Statute or ordinance requiring abutting owner or occupant to remove snow and ice from sidewalk as affecting liability for injuries, 82 A.L.R.2d 998, at § 2 (1962 2004 Supp.) (collecting cases addressing the "pedestrian/sidewalk" rule).
Accordingly, it is hereby ORDERED that the defendant's motion for summary judgment is granted in part and denied in part, that Gail A. Raimond's claims are dismissed, that the defendant's motion for summary judgment is otherwise denied and that the parties shall appear before Part III of this Court on October 29, 2004 at 3:00 p.m. (or as soon thereafter as they may be heard) to set a date for trial.