Massey v. Newburgh W. Realty Inc.

• Decision Date: 17 May 2011
• Citation: 2011 N.Y. Slip Op. 04086,923 N.Y.S.2d 81,84 A.D.3d 564
• Parties: Fantasia MASSEY, Plaintiff–Respondent,v.NEWBURGH W. REALTY, INC., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 564
923 N.Y.S.2d 81
2011 N.Y. Slip Op. 04086

Fantasia MASSEY, Plaintiff–Respondent,
v.
NEWBURGH W. REALTY, INC., Defendant–Appellant.

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

May 17, 2011.

[923 N.Y.S.2d 81]

Abrams, Gorelick, Friedman & Jacobson, P.C., New York (Jessica F. Napoli of counsel), for appellant.Weiss & Rosenbloom, P.C., New York (Erik L. Gray of counsel), for respondent.ANDRIAS, J.P., CATTERSON, MOSKOWITZ, MANZANET–DANIELS, ROMÁN, JJ.

[923 N.Y.S.2d 82 , 84 A.D.3d 564]

Order, Supreme Court, New York County (Joan A. Madden, J.), entered February 3, 2010, which denied defendant's motion for summary judgment, affirmed, without costs.

This action involves injuries allegedly sustained by plaintiff on March 14, 2007 when she slipped and fell on a sheet of ice on the sidewalk in front of defendant's premises, a convenience store in Newburgh, New York. Plaintiff testified that it was not raining or snowing on the date of the accident. At approximately 9:30 p.m., plaintiff's boyfriend, Michael Valerie, drove her to the store. When they reached the store, plaintiff stepped out of the car; she did not recall seeing any ice, salt or sand on the ground where the car was parked. While walking toward the store's entrance, plaintiff slipped and fell.

Plaintiff testified that she felt something slippery under both [84 A.D.3d 565] her feet, that her right foot slipped out from under her, and she was just on the floor. While on the ground, plaintiff observed ice underneath her. The ice extended approximately seven to eight feet to her left and approximately two to three feet to her right. At deposition, plaintiff identified the general location of the accident using a black-and-white facsimile image of a photograph of the accident location.¹

By notice dated April 20, 2009, defendant moved for summary judgment dismissing the complaint, relying upon the certified climatological records and the affidavit of its expert meteorologist, Thomas E. Downs, V. Downs noted, inter alia, that no snow, sleet, freezing rain or other precipitation had been recorded at any of the three weather stations in the area (i.e., Stewart International Airport, Duchess County Airport and Orange County Airport) in the seven days prior to the accident; that the only precipitation of any kind in the seven days prior to the accident was light rainfall on March 10th–11th; that no precipitation was observed after 3:00 a.m. on March 11th, three days prior to the accident; that high temperatures registered in the 50s and 60s in the two days prior to the accident; that at 1:00 a.m. on March 14, 2007, the date of the accident, the three weather stations recorded temperatures of 41 degrees, 39 degrees and 34 degrees, respectively; and that the weather conditions in the days preceding the accident, namely, light rainfall on March 10–11, and mostly sunny skies in the prior week, would have melted any residual snow or ice remaining on the ground by March 12, 2007.

Plaintiff opposed the motion for summary judgment, contending, first, that defendant failed to make a prima facie case. Plaintiff asserted that the affidavit of defendant's expert meteorologist, Thomas E. Downs, was speculative insofar as it did not take into account the relevant testimonial and photographic evidence in the case in concluding that there was no snow or ice on the ground.

Plaintiff asserted, in any event, that she had raised a triable issue of fact. Plaintiff relied on her deposition testimony and affidavit[84 A.D.3d 566] submitted in opposition to the motion,

[923 N.Y.S.2d 83]

in which she averred that the ice she had slipped on was “hard, dry and approximately one inch thick.”

Plaintiff relied, in addition, on certified meteorological records from the Walden 1ESE weather station which indicated that in the 14 days prior to and including March 14th, the date of the subject accident, the temperature fell below freezing on each and every day.

By order entered February 3, 2010, the court denied defendant's motion for summary judgment, stating that “[i]n light of plaintiff's sworn statements as to the size, thickness and dryness of the ice patch, Valerie's sworn and corroborating eye-witness statements, and the photograph clearly depicting a large, thick patch of ice, this court cannot determine as a matter of law that it would have been impossible for ice to be present on the sidewalk where plaintiff fell.” The court found Downs's affidavit not dispositive on the subject of whether it would have been impossible for ice to be present at the time and location of plaintiff's accident. The court noted that defendant's expert did “not conclude that the presence of ice would have been ‘impossible’ under the [meteorological] circumstances, and does not address specifically whether an area of ice approximately seven feet by three feet, and one inch thick, could be present under such circumstances.”

Finally, the court found that defendant had not met its burden as to constructive notice, since it failed to produce an affidavit, deposition testimony, or any other competent proof from an employee of its convenience store.

Summary judgment in a snow or ice case is proper where a defendant demonstrates, through climatological data and expert opinion, that the weather conditions would preclude the existence of snow or ice at the time of the accident ( see Perez v. Canale, 50 A.D.3d 437, 855 N.Y.S.2d 488 [2008] ). CPLR 4528 provides that “any record of the observations of the weather taken under the direction of the United States Weather Bureau, is prima facie evidence of the facts stated.”

Defendant argues that the motion court erred in finding that it had not established prima facie entitlement to summary judgment. However, defendant's expert opinion was arguably speculative insofar as it failed to take into account plaintiff's testimony concerning the nature of the ice, nor did it address plaintiff's photograph showing ice at the accident location ( see Neidert v. Austin S. Edgar, Inc., 204 A.D.2d 1030, 1031, 612 N.Y.S.2d 529 [1994] [stating that [t]he meteorologist's opinion that the weather conditions prevailing in the region could produce areas of black [84 A.D.3d 567] ice supports only speculation about actual conditions at the accident scene] ).

Further, as noted by the motion court, defendant did not satisfy its burden of establishing lack of constructive notice as a matter of law since it failed to submit an affidavit, deposition testimony or other competent evidence from a store employee establishing that any employees regularly inspected the sidewalk ( see Strange v. Colgate Design Corp., 6 A.D.3d 422, 774 N.Y.S.2d 344 [2004] ).

Even if we assume that defendant's meteorological data established prima facie entitlement to summary judgment, plaintiff's testimony, together with the meteorological data and photographic evidence of the alleged hazard, was sufficient to establish an issue of fact as to whether defendant had constructive notice of the alleged hazard.

Plaintiff testified that she felt something slippery under both her feet and that after she had fallen she observed ice on the ground beneath her. She identified the

[923 N.Y.S.2d 84]

location of the ice on photographs of the scene, and described the ice as approximately one inch thick and extending seven to eight feet to the left and approximately two to three feet to the right. In addition, weather data submitted by plaintiff established that the temperature fell below freezing every day prior to March 14, 2007, the date of plaintiff's accident. This evidence concerning the nature of the ice and the climactic conditions is sufficient, at this stage, to raise a triable issue of fact ( see Ralat v. New York City Hous. Auth., 265 A.D.2d 185, 693 N.Y.S.2d 561 [1999] [first-hand observations of icy condition, in addition to weather data establishing residual accumulation from earlier storms, constituted sufficient evidence from which a jury could infer that plaintiff's fall was caused by pre-existing ice]; Tubens v. New York City Hous. Authority, 248 A.D.2d 291, 292, 670 N.Y.S.2d 468 [1998] [weather data, in addition to plaintiff's first-hand observation of the condition of the steps at the time of her fall, namely, that they were covered with hard ice that was thick, old and dirty, provided sufficient evidence from which a jury could infer that her fall was caused by the pre-existing ice]; Candelier v. City of New York, 129 A.D.2d 145, 517 N.Y.S.2d 486 [1987] [jury could reasonably infer from plaintiff's testimony concerning ice on which he slipped, which he described as 1 or 2 inches thick, hard, slippery, bumpy and uneven, that ice had existed for a period of at least seven days, and had not developed solely as a result of snowfall on the days immediately preceding the accident]; see also Rivas v. New York City Hous. Auth., 261 A.D.2d 148, 689 N.Y.S.2d 483 [1999] [weather conditions, including temperatures consistently around freezing for the three-day period before plaintiff's accident, supported conclusion that plaintiff fell on pre-existing ice, not fresh snow] ).

[84 A.D.3d 568] In this case, unlike...