Opinion
Index No.: 154433/2015
01-03-2020
Keyuata Tucker, Petitioner, v. New York City Transportation Authority, City of New York, Metropolitan Transportation Authority Respondents.
NYSCEF DOC. NO. 43
DECISION AND ORDER
Mot. Seq. 1 Recitation, as required by CPLR 2219(a) , of the papers considered in the review of this motion:
| Paper | Numbered | NYCEF # |
| Defendant's Motion/ Affirmation/Memo of Law | 1 | 19-35 |
|---|---|---|
| Plaintiff's Opposition/Affirmation | 2 | 37 |
| Defendant's Reply | 3 | 39-41 |
In this personal injury action in which Keyuata Tucker alleges a slip and fall down subway stairs, Defendants New York City Transit Authority (Transit), City of New York, and Metropolitan Transportation Authority move for summary judgment and to dismiss the complaint.
Plaintiff alleges that, on March 6, 2015 at 8:30 a.m., she was at the northwest corner of the 110th Street and Lenox Avenue subway entrance to take the 2/3 train to work. When she took her first step from the sidewalk down the subway stairs, her left foot slipped out from under her and she slid down several steps landing on her back. Plaintiff claims that she was caused to fall by the presence of slush and snow which she tried to avoid by holding the railing and watching where she was stepping. It was not snowing at the time of her accident, but it had snowed the night before and there was snow on every step of the stairway. At the time of the accident, Plaintiff did not see anyone clearing snow from the stairway, although after her accident, she saw two people who appeared to be Transit employees begin salting the stairs while she was still sitting on the ground.
Defendant moves for summary judgment on two grounds: first, since a snowfall had concluded 13.5 hours before Plaintiff's accident and there were approximately 19 inches of snow on the surrounding sidewalks, a reasonable time after the storm had not yet passed for the clearing of snow from the subway steps. Alternatively, based on the testimony of the Transit cleaner that the steps were cleared by him at 7:10 a.m., One hour and twenty minutes before Plaintiff's accident, Defendants fulfilled their legal duty to Plaintiff.
In opposition, Plaintiff claims there are issues of fact both as to whether a reasonable amount of time had passed since the storm ended to clear the snow and whether Defendant had notice of the dangerous condition.
Summary judgment will be granted if it is clear that no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) The burden is on the moving party to make a prima facie showing of entitlement to summary judgment as a matter of law (Id.). The burden is a heavy one; the facts must be viewed in the light most favorable to the non-moving party and every available inference must be drawn in the non-moving party's favor (Sherman v New York State Thruway Authority, 27 NY3d 1019 [2016] [internal quotation marks omitted]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact (Alvarez, at 324). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Because summary judgment deprives a litigant of the party's day in court, it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Sherman v New York State Thruway Authority, 27 NY3d 1019 [2016]).
Under the storm-in-progress doctrine, a landowner's duty to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while the storm is ongoing until a reasonable time after the storm has ended (Baumann v Dawn Liquors, Inc., 148 AD3d 535 [1st Dept 2017]). The doctrine reflects practical concerns related to the challenges and dangers of maintaining property in a reasonably safe condition during inclement weather and allows workers a reasonable period of time to clear an area (Sherman, at 1022). The rule is designed to relieve a worker of any obligation to shovel snow while continuing precipitation or high winds are simply re-covering an area as fast as it is cleaned, thus rendering the effort fruitless (Powell v MLG Hillside Associates, L.P., 290 AD2d 345 [1st Dept 2002]).
In Powell, as much as two inches of snow had fallen overnight, but climatological charts revealed that by 6 a.m., precipitation had tailed off to less than one-tenth of an inch. In the 2-3 hours of sub-freezing temperatures prior to the plaintiff's accident, there were only trace amounts of precipitation. Noting that a period of as much as 30 hours could be viewed as insufficient to establish negligence, the Powell court held, "[o]nce 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" (Powell, at 346, citing Valentine v City of New York, 86 AD2d 381 [1st Dept 1982], affd 57 NY2d 932 [1982]). The court in Valentine held that the totality of circumstances was sufficient to remove any factual question from the jury where the second worst storm in the preceding 50 years had deposited 2-3 inches of precipitation, leaving a three-inch "icy mass" on the ground that could not be removed by shovel but had to be chopped away with ice picks, despite 30 hours between the end of the storm and the plaintiff's fall.
Similarly, the storm-in-progress defense was unavailing where the evidence established that a 6-to-7-inch snowfall occurred several days prior to the plaintiff's fall, the temperatures thereafter remained at or below freezing, the ice patch on which the plaintiff fell had a non-clear, whitish-to-gray coloration, with some thickness to it, and less than 1/10th of an inch of freezing rain had fallen in the storm that was occurring at the time of plaintiff's fall (Bagnoli v 3GR/228 LLC, 147 AD3d 504 [1st Dept 2017].
In contrast, a period of 82 minutes following a snowfall was not a reasonable time to remedy the icy condition of the ramp on which a plaintiff fell (Santana v New York City Housing Authority, 128 AD3d 564 (1st Dept 2015].
Here, Plaintiff testified that it was not snowing at the time of her fall. Defendants submitted climatological data produced by the National Climatic Data Center which indicated that no precipitation fell on March 6, the date of Plaintiff's accident, but significant amounts of snow fell on four of the first five days of March, with approximately 19 inches of snow or ice on the ground after the snowfall on March 5, when 7.5 inches of snow fell. The report also indicated that the snow that was falling on March 5, 2015 stopped between 6 and 7 in the evening, 13.5 hours before Plaintiff's accident occurred.
On a motion for summary judgment, the question of whether a reasonable time has elapsed may be decided as a matter of law by the court, based upon the circumstances of the case (Casey-Bernstein v Leach & Powers, LLC, 170 AD3d 651 [2nd Dept 2019]. Here, Plaintiff's testimony and the climatological data establish that it was not snowing at the time of her fall and that it last snowed 13.5 hours earlier. Transit's Unusual Occurrence Report describes the weather as "clear." Defendant's submission, therefore, fails to establish prima facie entitlement to the storm-in-progress defense.
Defendants' submissions equally fail to establish as a matter of law that the 13.5-hour period after the cessation of the snowstorm prior to Plaintiff's fall was an unreasonable amount of time for Defendants to remedy the slippery, slushy condition on the stairway that caused Plaintiff's fall (Casey-Bernstein v Leach & Powers, LLC, 170 AD3d 651 [2nd Dept 2019] [holding that the defendants failed to establish prima facie entitlement to judgment as a matter of law that they did not have a reasonable opportunity to remedy after cessation of the storm where the parking lot where the plaintiff fell was icy while the walkway from the hotel to the parking lot was clear where accumulation of 7 inches of snow had ceased to fall more than 12 hours before the accident, and the temperature was 32 degrees when the storm stopped and dropped below freezing during the time prior to the accident]; Ndiaye v NEP W. 119th St. LP, 124 AD3d 427 [1st Dept 2015] [whether the three hours that elapsed between the last freezing rain and plaintiff's accident afforded defendant a reasonable opportunity to clear the steps was a question of fact]). Here, the 13.5 hour period after cessation of the storm was a sufficient amount of time for defendants to remedy the slushy, slippery condition on the stairs.
As the moving party, Defendant has the prima facie burden of establishing that it lacked actual or constructive notice of the slippery condition (Muhammad v New York City Housing Authority, 111 AD3d 513 [1st Dept 2013]). While the evidence on the issue of constructive notice cannot be speculative (Solazzo v New York City Tr. Auth., 6 NY3d 734 [2005]), it can be based upon circumstantial evidence. If the evidence permits a reasonable inference that the condition existed long enough for a defendant to have remedied it, then the issue of constructive notice should be presented to the jury (Harrison v New York City Tr. Auth., 113 AD3d 472, 474 [1st Dept 2014]).
Defendant argues that the testimony of the Transit cleaner establishes that he was at the station on the morning of the accident and he cleaned the stairway on which Plaintiff fell at 7:10 a.m., one hour and twenty minutes before Plaintiff's accident which is sufficiently close in time that Defendant should be deemed to have sustained its duty to Plaintiff.
Plaintiff argues correctly, however, that the cleaner's testimony fails to eliminate questions of fact whether he cleared the actual stairway involved in Plaintiff's fall and whether the cleaning involved salting or clearing the stairway of snow and slush. The cleaner did not witness Plaintiff's fall and has no personal knowledge where she fell. Although the stairway is identified on Transit's Unusual Occurrence Report as stairway "S1A," the Transit cleaner testified that he did not know where stairway S1A was at the station. He stated that he cleaned descending stairways at the station, but he could not recall what he did to clean the stairs.
Plaintiff observed snow and slush on every step of the stairway at the time of her fall and photographs submitted with Defendant's motion are consistent with Plaintiff's testimony regarding the condition of the stairway. While it is true that it would be unreasonable to expect Defendants to constantly clean the stairway as passengers continually trudge snow from the sidewalk down the stairs, whether the snow-and-slush condition was visible and apparent and existed long enough for Defendant to have discovered it and taken curative action, is a question of fact for a jury (Harrison v New York City Tr. Auth., 113 AD3d 472 [1st Dept 2014]). Defendants' reliance on Duncan v New York City Tr. Auth., 260 AD2d 213 [1st Dept 1999] and Alatief v New York City Tr. Auth., 256 AD2d 371 [2nd Dept 1998] is misplaced, as in both cases precipitation was ongoing at the time of the occurrence.
Here, Defendants have failed to establish prima facie entitlement to judgment as a matter of law as the evidence does not demonstrate that there was a storm in progress at the time of Plaintiff s accident, that they did not have a reasonable opportunity after the cessation of the storm to address the slippery condition, or that they did not have actual or constructive notice of the condition. Plaintiff's description of snow and slush on all the stairs, standing alone, is sufficient to raise an issue of fact whether the ice had been there long enough to be discovered (Guzman v Broadway 922 Enterprises, LLC, 130 AD3d 431 [1st Dept 2015]). Accordingly, it is
ORDERED, that Defendants' motion for summary judgment and to dismiss Plaintiff's complaint is denied. Dated: January 3, 2020
New York, New York
ENTER:
/s/_________
Lisa A. Sokoloff, J.C.C.