Levene v. No. 2 W. 67th St., Inc.

• Decision Date: 17 March 2015
• Docket Number: 14521, 102976/11
• Citation: 2015 N.Y. Slip Op. 02072,6 N.Y.S.3d 232,126 A.D.3d 541
• Parties: David LEVENE, Plaintiff–Respondent, v. No. 2 WEST 67th STREET, INC., et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 541
6 N.Y.S.3d 232
2015 N.Y. Slip Op. 02072

David LEVENE, Plaintiff–Respondent
v.
No. 2 WEST 67th STREET, INC., et al., Defendants–Appellants.

14521, 102976/11

Supreme Court, Appellate Division, First Department, New York.

March 17, 2015.

6 N.Y.S.3d 232

Mischel & Horn P.C., New York (Scott T. Horn of counsel), for appellant.

William Schwitzer & Associates, P.C., New York (Howard R. Cohen of counsel), for respondent.

SWEENY, J.P., RENWICK, SAXE, MANZANET–DANIELS, GISCHE, JJ.

Opinion

126 A.D.3d 542

Order, Supreme Court, New York County (Debra A. James, J.), entered July 28, 2014, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law,

6 N.Y.S.3d 233

without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Defendants established their entitlement to judgment as a matter of law by submitting certified weather records and a meteorologist's affidavit showing that a winter storm was in progress at the time that plaintiff slipped and fell on ice covering the sidewalk in front of defendants' building (see Weinberger v. 52 Duane Assoc., LLC, 102 A.D.3d 618, 959 N.Y.S.2d 154 [1st Dept.2013] ). Plaintiff himself testified that it was sleeting at the time he fell at approximately 8 a.m., and defendants' porter stated that it had hailed through the night and a “slow rain” was falling at the time of the accident.

In opposition, plaintiff failed to raise a triable issue of fact. He submitted an affidavit of an expert meteorologist who did not dispute that freezing rain was ongoing at the time plaintiff fell, but concluded that defendants should have cleared and treated the sidewalk during the previous afternoon, when it was only drizzling. However, defendants' porter was not required to clear the public sidewalk of snow or ice during freezing precipitation (see Solazzo...