Opinion
101441/07.
Decided July 2, 2010.
The motion for summary judgment by defendant the City of New York (hereinafter the "City") is granted.
To the extent relevant, on or about January 24, 2006, plaintiff alleges that he sustained personal injuries when he was caused to slip and fall due to an icy condition on the sidewalk located in front of premises known as 303 Bement Avenue in Staten Island, New York.
In support of its motion, the City submits a copy of the official National Oceanic and Atmospheric Administration (hereinafter "NOAA") Report for Newark, New Jersey for January 2006 (see City's Exhibit "H"), which indicates that there was light snowfall on January 15, 2006, nine days prior to plaintiff's accident, and that the temperature thereafter fluctuated above and below freezing, reaching a high temperature of 63 degrees on January 21, 2006 ( id.). On the day prior to plaintiff's accident, the report indicates that there was rainfall, with a ground precipitation level of some .75 inches ( id.). Between then and the approximate time of plaintiff's fall, the temperature fluctuated between 32 degrees and 40 degrees, reaching 38 degrees at or about the time of his accident ( id.). Based on the foregoing, the City contends that "[i]t is entirely possible that rain may have turned into ice just before Plaintiff's accident", rendering it unable to address the alleged condition within a reasonable amount of time (Affirmation of Ann Broderick, Esq. at p 3).
On behalf of the Department of Sanitation (hereinafter "DOS"), Peter Kalenas testified at his deposition that the last date prior to plaintiff's accident on which the DOS dispatched vehicles to spread salt along Castleton Avenue, which intersects Bement Avenue in the vicinity of plaintiff's fall, was "for a major snow storm, [on] January 15, 2006" (EBT of Peter Kalenas, pp 6-8). According to the witness, there was no record of any icy condition at the intersection of Castleton Avenue and Bement Avenue listed in the "District Snow Operations Book" for January 24, 2004 ( id. at 28).
At his deposition, plaintiff testified that the accident occurred just as he began to descend the pedestrian ramp at the corner of Bement Avenue and Castleton Avenue, i.e., where the sidewalk sloped down into the crosswalk (EBT of Edward Saenz, pp 16-24). After he fell, plaintiff observed that a large patch of thick ice was covering the ramp, which he maintains had formed from the continuous splashing of water from an adjacent pothole located along the Bement Avenue side of the intersection ( see Affidavit of Edward Saenz, paras 9-12; Plaintiff's Notice of Claim; Plaintiff's Supplemental Notice of Claim; EBT of Edward Saenz, pp 23-25;). In support of the above, plaintiff has submitted copies of repair orders from the Department of Transportation (hereinafter "DOT") revealing that "big holes with water fil[ling]" (Plaintiff's Exhibit "3") were reported at the corner of Bement Avenue and Castleton Avenue on March 15, 2005. There were also repair orders for potholes at the same location on February 28, 2005 and April 15, 2005 (Plaintiff's Exhibit "3"). Plaintiff has also submitted copies of authenticated photographs which appear to depict the icy condition at the subject location within hours of his fall, but more than 9 months after the date of the last DOT repair order (Plaintiff's Exhibit "2", EBT of Edward Saenz, pp 25-28).
It is familiar law that a municipality is obligated to keep the streets within its jurisdiction in a reasonably safe condition for travel ( see Mazzella Jr v. City of New York , 72 AD3d 755 [2nd Dept 2010]). However, in order to render a municipality liable for injuries caused by the presence of snow and ice, a plaintiff must establish that the condition constituted an unusual or dangerous obstruction to travel, and that the municipality either caused the condition or that enough time had passed to support the presumption that there had elapsed a sufficient opportunity to effect a repair ( id., see Gonzalez v. City of New York, 148 AD2d 668, 670 [2nd Dept 1989]). Moreover, transitory conditions on a street or walkway, such as debris, oil, ice, or sand, have been found to constitute potentially dangerous conditions for which prior written notice must be given before a municipality will be rendered liable ( see Farrell v. City of New York , 49 AD3d 806 , 807 [2nd Dept 2008]). The only recognized exceptions to the prior written notice requirements are where the city, town or village affirmatively created the alleged defective or dangerous condition, or where a special use conferred a special benefit upon the municipality ( id.).
In addition, it is well established that the "responsibility for icy conditions arises, at the most, only after the lapse of a reasonable time for taking protective measures and never while a storm is still in progress" ( DeStefano v. City of New York , 41 AD3d 528 , 529 [2nd Dept 2007][internal quotation marks omitted]). Thus, a lull in the storm does not impose a duty upon the municipal corporation to remove the accumulation of snow or ice before the storm ceases in its entirety ( id.). For these purposes, a "reasonable period" has been held to be the period within which the municipality should have taken notice of the icy condition and, in the exercise of reasonable care, remedied the situation by, e.g., clearing the walkway, or sanding, salting or otherwise eliminating the danger posed to travelers using the sidewalk and/or pedestrian ramps ( see Gray v. City of New York , 33 AD3d 857 , 858 [2nd Dept 2006]).
Here, it is the Court's opinion that the City established its entitlement to summary judgment by submitting climatological data demonstrating that although a light snow had occurred some nine days before plaintiff's accident, four days of above freezing temperatures and rainfall separated its snow removal efforts from the evident refreezing which preceded plaintiff's accident. In response to the City's prima facie demonstration that it did not create or have actual or constructive notice of the alleged icy condition, plaintiff's proof failed to demonstrate the existence of any triable issue of fact ( see DeStefano v. City of New York, 41 AD3d at 530). In this regard, the Court rejects plaintiff's allegation that the continuous splashing of water from an adjacent pothole created the alleged icy condition as wholly speculative in nature ( see Bonney v. City of New York , 41 AD3d 404 [2nd Dept 2007]; DeStefano v. City of New York, 41 AD3d at 529), and markedly inconsistent with his earlier deposition testimony, in which he made no mention of the pothole ( see Bolde v. Borgata Hotel Casino Spa , 70 AD3d 617 [2nd Dept 2010]; Hunt v. Meyers , 63 AD3d 685 [2nd Dept 2009]). As the foregoing cases indicate, a self-serving affidavit presenting feigned issues designed to avoid the consequences of earlier deposition testimony is insufficient to defeat a motion for summary judgment. Moreover, contrary to the plaintiff's contention, repair orders or reports, reflecting only that pothole repairs had been made to the subject area nine months before the accident, constitute an exception to the prior written notice requirement only where the pothole as repaired by the City "immediately result[ed] in the existence of a dangerous condition" ( Yarborough v. City of New York , 10 NY3d 726 , 728 [2nd Dept 2008]; Marshall v. City of New York , 52 AD3d 586 , 587 [2nd Dept 2008]; see Khemraj v. City of New York , 37 AD3d 419 [2nd Dept 2007]). There is no such evidence in the case at bar.
Thus, plaintiff has failed to adduce competent evidence that the ice patch in question formed as a result of the January 15th snow accumulation ( see Bonney v. City of New York, 41 AD3d at 404; Clapp v. City of New York, 302 AD2d 347 [2nd Dept 2003]) or that the City had actual or constructive notice of the alleged condition and a reasonable time to cure ( see Ronconi v. Denzel Assocs , 20 AD3d 559 [2nd Dept 2005]).
Accordingly, it is
ORDERED that defendant's motion for summary judgment is granted; and it is further
ORDERED that the complaint is dismissed; and it is further
ORDERED that the Clerk enter judgment and mark his records accordingly.