Fukunaga v. Broadwall Mgmt. Corp., INDEX NO. 162170/2014
| Decision Date | 21 September 2017 |
| Docket Number | INDEX NO. 162170/2014 |
| Citation | 2017 NY Slip Op 32030 (U) |
| Parties | JENNIFER FUKUNAGA, Plaintiff, v. BROADWALL MANAGEMENT CORP., THE FEIL ORGANIZATION, INC., and FREE PARK ASSOCIATES, Defendants. |
| Court | New York Supreme Court |
Motion by Defendants Broadwall Management Corp., The Feil Organization, Inc., and Free Park Associates for summary judgment pursuant to CPLR 3212 is granted as follows:
BACKGROUND
Th is is a personal injury action in which Plaintiff Jennifer Fukunaga alleges that she slipped and fell on black ice on the sidewalk, sustaining personal injuries on January 28, 2013, at 7:30 PM, in front of her home, located at 65 North Ocean Avenue in Freeport, NY (the "Premises"), due to the negligence of Defendants. (Hitchcock Affirm., Ex. G [Fukunaga EBT] at 67:19.)
Plaintiff described the weather that day as very cold and stated that she did not recall whether there had been any precipitation that day. (Id. at 69:19-70:14, 71:14-71:25, 72:22-73:18, 74:24-75:09, 80:20-81:02, 87:16-81:21.) Plaintiff stated that she thought there was probably some snow on the grass but could not remember either how much snow there was or whether it snowed the night before or a few days before. (Id. at 64:17-65:06, 74:24-75:04.) Plaintiff stated that, except for the ice on which she slipped, she did not see any snow, ice, salt, or sand on the roads, sidewalks, paved paths, or parking lot around the Premises. (Id. at 63:13-65:08, 71:20-25, 79:22-24, 80:03-05, 89:20-22, 100:11-16, 169:03-10.)
National Oceanic and Atmospheric Administration ("NOAA") records, submitted by Defendants, from the John F. Kennedy International Airport weather station ("JFK") establish that .1 inches of snowfall precipitation and .19 inches of water equivalent precipitation fell at JFK on the date of Plaintiff's alleged accident. (Hitchcock Affirm., Ex. F [NOAA Records] at 2, 3, 7.) This precipitation consisted of rain, snow, ice pellets, and mist. (Id. at 2, 3.) NOAA recorded this precipitation as having fallen from between the hours of 9:00 AM and 10:00 AM to between the hours of 8:00 PM and 9:00 PM. (Id. at 3.) This precipitation fell in trace amounts between 9:00 AM and 12:00 PM and between 5:00 PM and 7:00 PM. (Id.) It reached its highest hourly value, .06 inches, between 3:00 PM and 4:00 PM. (Id.) Between 7:00 PM and 8:00 PM, the hour of the alleged incident, .03 inches of thisprecipitation fell. (Id.) Temperatures at JFK on this day averaged 30 degrees Fahrenheit, with a high of 35 and a low of 24. (Id. at 2.)
NOAA also measures the depth of snow and ice on the ground every day at 7:00 AM. The only measured depth of snow or ice on the ground at JFK in the entire month of January 2013 consists of a single inch recorded for January 26, 2013. (Id.) On January 25, 2013, precipitation fell at JFK that included .8 inches of snowfall and .05 inches of water equivalent. (Id.) On January 26, 2013 and January 27, 2013, no precipitation fell at JFK. From January 1, 2013 to January 24, 2013, NOAA recorded snowfall precipitation at JFK on five days, with .1 inches per day on two of the days and a trace amount per day on three of the days, and recorded water equivalent precipitation which fell on ten days and totaled to 1.64 inches, with the highest daily level of .82 inches falling on January 16 and with approximately .03 inches falling from January 17 to 24. (Id.)
Prior to the alleged incident, at about 7:30 PM, Plaintiff testified that she walked the following route with her son, age three or four at the time, on the way to her car, which was parked across the street from the Premises on Randall Avenue: first, they exited through the front door of her apartment building; then, they walked down the front steps of her building; next, they proceeded along the straight pathway connecting the front steps to the sidewalk abutting the Premisesand North Ocean Avenue; after that, they went left on the sidewalk abutting the Premises until they came to a curved walkway which connects the North Ocean Avenue sidewalk and the parking lot on the Randall Avenue side; finally, they took that curved walkway to the parking lot, cut through the parking lot in the direction of the curb cut, and arrived at the spot of the alleged incident—the sidewalk flag between the parking lot and curb cut. (Id. at 95:08-11, 146:04-163:13.)
During Plaintiff's deposition, Plaintiff was shown copies of photographs of the area in which the alleged accident occurred. Plaintiff's counsel did not allow Plaintiff to mark the accident location on the relevant photograph or photographs.1
Plaintiff stated that, at the time of her alleged accident, she was looking straight ahead, felt her son begin to slip, maneuvered herself to catch him, and then herself slipped, falling backward immediately with her feet touching the curb cut in front of her and her buttocks landing in the middle of the sidewalk flag. (Fukunaga EBT at 37:03-08, 44:23-24, 46:05-11, 93:25-96:09, 162:01-163:25.) Plaintiff stated that the "black ice" spot where she and her son fell consisted of a circular mass, approximately three feet in diameter, located in the center of the sidewalk flag between the parking lot on the Randall Avenue side of Plaintiff's apartment building and a curb cut on Randall Avenue "[a] little after the stop sign." (Id. at 60:18-22, 88:16, 92:22-93:24, 108:04-109:07, 162:16-164:06.)
At the time of Plaintiff's alleged accident, Steve Radoncic was employed by Defendants as the superintendent of the Premises. (Hitchcock Affirm., Ex. H[Radoncic EBT] at 6:23-8:11.) At Mr. Radoncic's examination before trial, Mr. Radoncic stated that he and his staff of three workers were on duty 24 hours a day and that, if it snowed and was "necessary," i.e., depending on the circumstances, they would shovel the snow, sometimes using a snow blower depending on snow volume, and put down salt. (Id. at 11:07-15:07.) For any amount of snow or ice, Mr. Radoncic said he would "throw out the salt" to clear it up. (Id. at 20:12-17.)
Mr. Radoncic stated that he could not remember whether he and his staff undertook any snow or ice removal efforts on the date of the alleged accident. (Id. at 17:21-25.) Mr. Radoncic further stated that he was not required to create records regarding snow and ice conditions or removal. (Id. at 18:02-07, 30:19-31:05.)
Mr. Radoncic stated that there was no formal schedule for clearing the sidewalks, but rather his staff would clear the sidewalks either when they observed a need to do so or if he himself called and told them to do so. (Id. at 15:01-07, 16:02-17:20, 19:13-20:17.) Mr. Radoncic stated that it would be "necessary" to work to remove snow or ice anytime there was snow or ice on the sidewalk. (Id. at 30:10-18.) When asked if building staff were "responsible for the sidewalks outside of their own buildings," Mr. Radoncic answered that he and his staff were responsible "[f]or the clean-up of buildings, parking lots, snow removal, all that things." (Id. at 33:19-34:11.)
At the time of the alleged accident, Orhan Deljanin was working as a porter, reporting to Mr. Radoncic and living at the Premises. (Hitchcock Affirm., Ex. I [Deljanin EBT] at 7:09-10:19.) Mr. Deljanin stated that he could not recall whether he undertook any snow or ice removal efforts on the date of the alleged accident and that his employer does not create or maintain records concerning sidewalk cleaning. (Id. at 23:09-25.) Mr. Deljanin stated that he was responsible for removing snow and throwing salt on the sidewalks. (Id. at 10:25-11:09, 12:09-14.) Mr. Deljanin further stated that in the event of snowfall, the workers cannot do anything until the snow stops falling, but thereafter will "use machines and . . . clean the sidewalk completely and . . . throw salt on it." (Id. at 12:07-11.)
Mr. Deljanin stated that he and other workers would "clean up the stairs or the steps in front of the building." (Id. at 12:13-14, 17:13-21.) Mr. Deljanin further stated that that cleaning "the pathways in between the building" and the parking lot on the Randall Avenue side next to where Plaintiff allegedly fell was something "done by the company," of which, Mr. Deljanin said, he could not recall the name but that it was "maybe something in Queens." (Id. at 17:22-18:08.) Mr. Deljanin stated further that the staff work "all together and . . . don't have specific duties as to what to do where." (Id. at 16:18-17:07.)
Defendants argue in their papers that the action should be dismissed because the applicable Village of Freeport Code does not impose tort liability on Defendants for their alleged failure to remove snow or ice from where Plaintiff fell, which, they argue, was a public sidewalk. (Hitchcock Affirm. ¶ 3.) Defendants argue further that, in the absence of such a statute or ordinance, they have met their prima facie burden and the burden shifts to Plaintiff, who must demonstrate that Defendants undertook snow or ice removal efforts that created a dangerous condition or made a naturally occurring condition more dangerous. (Id.) Defendants assert that there is no evidence beyond Plaintiff's mere speculation that Defendants made any efforts to remove snow or ice on or around the date of the alleged incident. (Id.) Thus, Defendants argue that they neither created a dangerous condition nor exacerbated a naturally occurring condition on the public sidewalk where Plaintiff allegedly slipped and fell. (Id.)
Defendants also claim to have shown prima facie that there was a storm in progress when Plaintiff fell...
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