Section 4528 of the Civil Practice Law and Rules categorically 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”. Curiously, litigation often ensues in which the Courts must determine whether or not proof of weather conditions was established in a legally-cognizable and summarily dispositive manner.
Sikora v. Earth Leasing Property Limited Liability Company, 2014 NY Slip Op 24305 (Sup. Ct. N.Y. Co. decided on October 14, 2014) [Ling-Cohan, J.]; aff’d 2015 NY Slip Op 07918 (App. Div. 1st Dept. decided on October 29, 2015)
Supreme Court stated that:
The main issue before the court was whether climatological records, without an expert affidavit, may be used to establish a prima facie case, entitling defendant to summary judgment in a slip and fall case involving an alleged icy condition. It appears that this issue has not been directly addressed by the courts.
The Court briefly summarized the facts:
Plaintiff Maria Sikora alleges that on February 14, 2011, between 11:00 a.m. and 12:00 p.m., she was injured when she slipped and fell on a patch of ice covering the majority of the sidewalk abutting defendant’s property.…At her deposition, plaintiff testified that the weather was freezing, but it was not snowing, and she did not think it snowed the day before…
The pending motion and plaintiff’s claim:
Defendant has filed a motion for summary judgment, seeking to dismiss the complaint and all claims and cross-claims. In support of its motion, defendant relies upon the certified records from the National Climatic Data Center, which show that the temperature on February 14, 2011, at the approximate time (between 11:00 a.m. and 12:00 p.m.) of plaintiff’s accident was above freezing, reaching as high as 53 degrees Fahrenheit, and had been above freezing, fluctuating from 35 to 53 degrees Fahrenheit, since approximately 8:51 a.m. the day before plaintiff’s fall. …Based solely on such certified climatological records, defendant argues that the icy condition alleged by plaintiff would not have formed.
Defendant also argues that it neither created nor had actual or constructive knowledge of any ice on the sidewalk on which plaintiff slipped and fell. In support, defendant submits an affidavit and deposition testimony from superintendent Mr. Gorge Cortes (“Cortes”), who is responsible, with the help of his co-worker, for snow and ice removal at defendant’s property…Cortes testified that, whenever it snowed, he and his co-worker would “always go outside to shovel the snow and the ice.”… Specifically, Cortes stated that it was his responsibility to start removing snow at 7:00 a.m.…In his affidavit, Cortes further stated that, every morning at 8:00 a.m., he inspects the building inside and out for any maintenance issues, and that he would have checked carefully for any snow and ice on the sidewalk, and promptly removed same and salted the sidewalk, should there have been any snow or ice when he performed his morning inspections on the date of plaintiff’s alleged accident…Moreover, Cortes stated in his affidavit that he was “not aware of snow or ice ever remaining on the sidewalk after [he had] performed snow or ice removal.” Furthermore, he stated that, to his knowledge, none of defendant’s maintenance activities ever caused snow or ice accumulation on the sidewalk where plaintiff allegedly slipped and fell…
In opposition, plaintiff argues that defendant has failed to meet its burden to establish prima facie entitlement to summary judgment. Plaintiff argues that defendant has failed to establish that it was physically impossible for ice to be present on the sidewalk at the time of the accident. Specifically, plaintiff argues that it is insufficient for defendant to rely solely on meteorological data regarding air temperature, without presenting further explanation or expert analysis…Plaintiff asserts that the days leading up to plaintiff’s accident were extremely cold and that plaintiff’s testimony that she saw water on top of the ice suggests the ice may have been in the process of melting at the time of her accident…Plaintiff contends that the process of ice fully melting takes a period of time and cannot cease to exist immediately when the air temperature rises above freezing…In particular, plaintiff alleges that the temperature of the pavement is often lower than the temperature of the air and that, wet-bulb temperature readings provide a more accurate basis for determining the rate at which ice melts…According to plaintiff, defendant’s arguments are based upon dry-bulb temperature readings that do not provide an accurate understanding of the rate at which ice melts or whether the ice would have melted, which is determined by the wet-bulb temperature…Thus, plaintiff argues that the proof provided by movant is insufficient to establish that it was impossible for ice to exist as alleged by plaintiff…
Moreover, plaintiff contends it is insufficient for defendant to rely on superintendent Cortes’ testimony to establish that it did not have notice of the ice on the sidewalk on which plaintiff allegedly slipped and fell…Plaintiff maintains superintendent Cortes’ testimony is insufficient proof of defendant’s lack of notice because superintendent Cortes testified that he did not know the last time prior to the day of the accident that snow was removed from the sidewalk in front of defendant’s property, nor did he know whether ice was on the subject sidewalk on that day…
And defendant’s reply:
In reply, defendant maintains that plaintiff failed to rebut defendant’s prima facie entitlement to summary judgment of dismissal, as plaintiff submitted three articles printed from various websites regarding pavement and wet-bulb temperatures that are inadmissible proof, along with climatological data from the National Climatic Data Center for the month of February 2011, which defendant argues undermines plaintiff’s assertions that the pavement was too cold for the snow to melt because it shows that surface accumulations of snow and ice had been melting all month and there was no snow or ice on the ground on the day of plaintiff’s alleged accident…Defendant further asserts that plaintiff needed to retain an expert to qualify plaintiff’s articles as admissible proof and to refute defendant’s prima facie evidence…Even if the articles were to be considered, defendant argues they fail to establish the principles for which plaintiff attempts to use them because, for example, plaintiff relies on one article to allege that wet-bulb temperature determines when ice melts rather than the dry-bulb temperature, however, the article she offers in support makes no such assertion…
And concluded that defendants failed to meet its burden of proof:
[D]efendant failed to meet its burden of demonstrating, prima facie, that it is entitled to summary judgment in its favor, as a matter of law. First, it has failed to establish its core contention that, as a matter of law, an icy condition could not have existed. While CPLR 4528 permits records of weather observations taken under the direction of the United States weather bureau to be prima facie evidence of the facts stated…the climatological reports submitted by defendant fail to establish conclusively that the alleged icy condition on which plaintiff fell could not have existed. Without other evidence, such data with regard to a mere 26 hours of above freezing temperatures, prior to plaintiff’s fall, when considered in light of two straight weeks in which the minimum temperature fell at or was well below freezing prior to the date of plaintiff’s accident, permits the reasonable inference that the alleged icy condition had not completely melted at the time of plaintiff’s fall…
* * *
Defendant, herein, merely submitted certified climatological records to establish that the temperature was above freezing on the date and time of plaintiff’s alleged accident, and had been so for approximately 26 hours prior to the alleged incident. According to the data recorded by the National Climatic Data Center, the temperatures above freezing ranged from 35 to 53 degrees Fahrenheit in the 26-hour period prior to plaintiff’s fall, but the daily temperatures in the two weeks leading up to plaintiff’s accident consistently fell to at or below freezing temperatures…
Notwithstanding its submission of the climatological records, defendant failed to show that ice under the specific conditions could not have existed…Significantly, defendant relies solely on climatological reports and does not provide any expert opinion or other evidence to satisfy its burden of proof.
With the admonition that:
Contrary to defendant’s argument, it is not enough to merely show that ice would not form in certain temperatures, since ice that had previously formed may have continued to exist and may not have melted completely, despite a brief rise in temperature. Thus, mere climatological records, although prima facie evidence of the weather conditions stated therein…would not be dispositive as to whether ice, that was previously formed, would continue to exist in all situations. The brutal winter this past year of almost daily snow and frigid temperatures which enveloped this city for months, has taught us all in New York City that, notwithstanding a two day “heat wave” respite during one February weekend, when the temperature reached a high of 54 degrees Fahrenheit for two straight days, there were still random blocks of ice and snow left on the street, which people had to maneuver around and/or dig their cars out of…Further, the court observes that, similarly, it is self-evident that, while ice cubes do not form in temperature conditions above freezing, ice cubes can and do exist in warmer weather, under certain conditions — an experience that anyone who has enjoyed a refreshing ice cubed drink in hot weather at the beach can attest to. Thus, given the lack of an expert affidavit concluding that, under the conditions of the case, no previously formed ice could have continued to exist during the relevant time period, movant’s summary judgment motion must be denied, as defendant only submits the climatological data on this issue.
Furthermore, defendant failed to provide prima facie evidence that it did not have actual or constructive notice of the existence of the icy condition, which allegedly caused plaintiff to fall. Defendant presented no evidence as to when the sidewalk was last inspected prior to plaintiff’s alleged accident, or when snow or ice was last removed from the sidewalk…
Significantly, here, defendant relies solely on the affidavit and deposition testimony of its superintendent, who could not conclusively state that he worked on the day of plaintiff’s alleged accident…In his deposition testimony, the superintendent merely stated, “I do not remember but I believe so. I believe I did work that day.”…Likewise, in his affidavit, the superintendent does not affirmatively state he was on duty at defendant’s building on February 14, 2011, the date of the accident…
Having failed to establish entitlement to summary judgment, the burden never shifted to plaintiff to raise a genuine issue of fact. Nevertheless, even assuming, arguendo, that defendant met its burden of proof, plaintiff successfully rebutted defendant’s evidence by her deposition testimony as to the existence of ice where she fell…Here, plaintiff testified in her deposition that she slipped on ice that was covering most of the sidewalk abutting defendant’s property…She further described that there was a small amount of water on top of the icy patch which caused her to slip…Plaintiff also provided climatological data indicating that the temperature in days preceding the accident fell to freezing or well below freezing…Thus, plaintiff raised a triable issue of fact as to the existence of ice on the sidewalk where she allegedly slipped and fell…
The Appellate Division summarily affirmed:
Defendant failed to establish entitlement to judgment as a matter of law in this action where plaintiff was injured when she slipped and fell on ice on the sidewalk adjacent to defendant’s building. The climatological records submitted by defendant noted that the temperature was above freezing for 26 hours prior to plaintiff’s fall. However, for the two weeks prior to the accident the temperature was at, or below, freezing. As such, defendant did not show that the allegedly icy condition could not have been present at the time of plaintiff’s fall[.] Defendant also failed to demonstrate that it did not have notice of the icy condition. Defendant did not present any evidence as to when the sidewalk was last inspected prior to plaintiff’s fall, or when snow or ice was last removed[.] Nor did it provide any written record of snow or ice removal[.]
The Appellate Division, First Department, has also addressed the sufficiency of weather conditions/evidence on at least four different occasions:
In Perez v. Canale, 2008 NY Slip Op 03312 [50 AD3d 437] (decided on April 15, 2008), the First Department affirmed the Order of Supreme Court granting defendant summary judgment dismissing the complaint:
Defendants established a prima facie entitlement to summary judgment in this action where plaintiff was injured when he allegedly slipped and fell on snow and ice while traversing a cement walkway leading to a building owned by Sagamore and managed by Knickerbocker. The climatological data relied upon by defendants’ expert meteorologist was prima facie evidence of the facts stated therein (CPLR 4528), and the expert permissibly concluded that due to temperatures that were well above freezing in the 12 hours prior to plaintiff’s fall, it would have been impossible for there to have been a precipitation-related ice or snow accumulation in the vicinity of plaintiff’s fall. Contrary to plaintiff’s contention, it was not speculative for defendants’ qualified expert to conclude that the temperatures were at levels that would have caused melting on the days prior to and of the accident…
The affidavit of plaintiff’s friend does not raise a triable issue of material fact, in the face of the evidence that ice could not have been present on the walkway at the time of the accident…The court also properly discounted plaintiff’s photographs taken the day after the accident, where the photos were not of the accident location…
In Santiago v. New York City Health & Hospitals Corp., 2009 NY Slip Op 07197 [66 AD3d 435] (decided on October 8, 2009), the First Department reversed an Order of Supreme Court that granted defendant’s motion for summary judgment dismissing the complaint:
Defendant failed to establish prima facie that it did not have constructive notice of the ice on the sidewalk in front of its property on which plaintiff allegedly slipped…The climatological records submitted by defendant reflected that the last measurable snowfall occurred several days before the accident and that thereafter the temperature only rose above freezing, for a brief period, more than 24 hours before the accident. The reasonable inference is that the ice formed after the temperature returned to freezing, more than 24 hours before the accident. However, while its employees testified as to defendant’s snow and ice removal practice at the time of the accident, defendant kept no records of such removal, and its witnesses could not recall when, or whether, ice or snow had been removed in the days preceding the accident. Thus, the ice could have been there “so long that [defendant] is presumed to have seen it, or to have been negligent in failing to see it”…As defendant failed to meet its initial burden, the motion should have been denied regardless of the sufficiency of plaintiff’s opposition papers…
Were we to find that defendant met its burden on the motion, we would find that plaintiff’s submission of an expert meteorologist’s opinion, based on meteorological data, that the ice condition was created at least 25 hours before the accident as a result of a thaw and refreeze cycle following the snowfall raised a triable issue of fact as to the origin of the ice patch and the length of time it was there before the accident occurred…
In Daley v. Janel Tower L.P., 2011 NY Slip Op 07676 [89 AD3d 408] (decided on November 1, 2011), the First Department affirmed Supreme Court’s Order granting defendants’ motion for summary judgment dismissing the complaint:
Defendants established their prima facie entitlement to judgment as a matter of law. Plaintiff alleges that she was injured when she fell on black ice in defendants’ parking lot, next to an area where defendants’ contractor piled snow after a snowfall. However, the climatological reports showed that it last snowed more than one week prior to plaintiff’s fall and that during the three-day period prior to plaintiff’s fall, temperatures remained well above freezing. Accordingly, the purported icy condition, consisting of a two-by-two-foot square, would not have formed under those circumstances…
In Rodriguez v. Bronx Zoo Restaurant, Inc., 2013 NY Slip Op 06294 [110 AD3d 412] (decided on October 1, 2013), the First Department reversed Supreme Court’s Order granting defendants’ motion for summary judgment dismissing the complaint:
Plaintiff correctly contends that defendants failed to satisfy their prima facie burden since they did not submit evidence sufficient to establish that they did not have constructive notice of the hazardous icy condition on the sidewalk in front of their franchise restaurant on which plaintiff allegedly slipped…In cases involving slip and falls on icy sidewalks, a defendant moving for summary judgment must proffer evidence from a person with personal knowledge as to when the sidewalk was last inspected or as to its condition before the accident…
Here, the climatological records reflect that the area had last received precipitation two days prior to the January 17, 2009 accident, and that the temperature remained below freezing during the interim period. Defendants’ supervisor, who only visited that franchise twice per week, attested that the employees would typically respond to winter storms by shoveling the sidewalk, and then applying rock salt. However, she had no personal knowledge of whether this procedure was followed in response to this storm, did not aver that she was present on either the day of the storm or the accident, and offered no evidence as to when the sidewalk had last been inspected or cleaned of snow, ice, or other debris. Hence, defendants’ evidence was “not probative of lack of actual or constructive notice,” and the evidence of their general procedures, standing alone, was insufficient to satisfy their burden on summary judgment…As defendants failed to meet their initial burden, the motion should have been denied regardless of the sufficiency of plaintiff’s opposition papers…
In Acar v. Ecclesiastical Assistance Corp., 2015 NY Slip Op 01167 (decided on February 10, 2015), the First Department unanimously affirmed Supreme Court’s Order granting defendant’s motion for summary judgment dismissing the complaint because:
The affidavit of plaintiff’s expert meteorologist was not sufficient to raise a triable issue of fact as to whether the ice upon which plaintiff allegedly slipped and fell was a result of melting and refreezing of runoff created by defendant’s snow-clearing activities. As Supreme Court found, the meteorologist’s opinion offered by plaintiff was speculative. Plaintiff’s expert did not refute the testimony of defendant’s maintenance supervisor that, shortly before plaintiff’s fall, he had inspected the subject area and observed that it was free of ice. In any event, even if the snow removal efforts were incomplete, they did not exacerbate any hazardous condition.
And in Levene v. No. 2 W. 67th St., Inc., , 2015 NY Slip Op 02072 (decided on March 17, 2015) [Sweeny, J.], the First Department summarily reversed the order of Supreme Court that denied defendants’ motion for summary judgment dismissing the complaint:
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…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 …although he was attempting to do so at the time of the accident…Furthermore, plaintiff’s expert did not opine that in the 30 hours preceding the accident there was ever a four-hour lull in the storm that would give rise to defendants’ duty to have cleared snow and ice from the public sidewalk…Plaintiff’s testimony also provided no support for the theory that the ice was old or preexisting, as he did not recall any unusual snow or ice conditions on the sidewalk when he walked there the previous night[.]
Of course, all of these actions started in the Supreme Court. Two recent examples follow:
In Rodriguez v. City of New York, 2015 NY Slip Op 32173(U) (Sup. Ct. Bronx Co. decided on October 29, 2015), an action for alleged negligence with respect to the maintenance of the public sidewalk, the question presented that whether the City had a duty to undertake snow removal efforts at the location of the accident.
Supreme Court summarized the facts:
The instant action is for alleged personal injuries sustained by plaintiff when he allegedly slipped and fell on ice. Specifically, plaintiff’s complaint, read together with his notice of claim, alleges that on January 31, 2011, while traversing the sidewalk abutting premises located at 1084 East 155th Street, Bronx, NY (1084), he slipped and fell on an icy condition existing thereat. Plaintiff alleges that the City owned and maintained the sidewalk, and was negligent in failing to maintain it in a reasonably safe condition, and that such negligence caused his accident and the injuries resulting therefrom. Plaintiff also alleges that defendant NEW YORK CITY HOUSING AUTHORITY (NYCHA) owned 1084, and as owner, was responsible to maintain the sidewalk, was negligent in failing to do so, such negligence causing the aforementioned accident and injuries.
The prior decision:
On December 16, 2014, Judge Barone, to the extent relevant, denied the City’s motion for summary judgment on grounds that questions of fact precluded summary judgment. Specifically, with regard to the City, Judge Barone concluded that “a jury could conceivably conclude that [with respect to the cessation of the last snow fall and plaintiff’s accident]…the City had sufficient time in which to respond.
The City’s motion to reargue:
The City’s motion seeking reargument of Judge Barone’s decision is granted insofar as it establishes that in concluding that the City had enough time between the last time it snowed and plaintiff’s accident to remove the same, Judge Barone misapprehended both the facts and misapplied the relevant law. A review of the City’s prior moving papers establishes that given the amount of snow that had fallen prior to plaintiff’s accident and the time between the cessation of the last snow fall and the instant accident, the City did not have to undertake any snow removal efforts at the instant location as a matter of law. Moreover, reargument is warranted because on the record before Judge Barone, the City also demonstrated entitlement to summary judgment by establishing (1) that the icy condition alleged to have caused plaintiff’s accident was neither unusual, exceptional, or in any way different from those conditions commonly associate with the prevailing winter weather; and (2) that it had no notice of the particular patch of ice alleged to have caused plaintiff’s accident. Both of the foregoing grounds mandated the grant of summary judgment in favor of the City, and insofar as Judge Barone failed to address the same, he further misapprehended the facts and misapplied the law.
The use of climatological reports:
Climatological reports can be used to establish the weather conditions at the time of the accident alleged, including the existence of snow…However, whether such reports establish the origin, formation, and duration of a particular condition is a factual analysis and is wholly dependent on the facts of each case. For example, in Rivas v. New York City Housing Authority (261 AD2d 148 [1st Dept 1999]), the court held that using climatological data, plaintiff established that defendant had constructive notice of the defect alleged, namely, a patch of ice…The court noted that the climatological reports established that it had snowed several days prior to plaintiff’s accident, that some snow remained on the ground thereafter, and that the temperatures remained below freezing, which evidence was sufficient to establish that a defendant had constructive notice of the ice patch alleged and had sufficient to time to discover and remedy the same…Conversely, the court in Womble v. NYU Hospitals Center (123 AD3d 469, 469 [1st Dept 2014), held that climatological data submitted failed [to establish] that a storm was in progress when it lacked a key explaining the data codes used therein.
The applicable law:
Generally, there is no duty to abate a snow or ice condition while a storm is in progress and, generally, no liability will be imposed for an accident occurring during a storm…The rationale being, of course, that snow removal efforts in the midst of falling snow and high winds is rather fruitless…In addition, what constitutes a reasonable time after the cessation of a storm sufficient to impose snow removal efforts is often a question of fact[.]
The applicable precedents:
Nonetheless, this issue can be, and has been decided as a matter of law, when the evidence so warrants. With respect to municipal liability, summary judgment has generally been granted, and the issue of reasonableness has been resolved as a matter of law when the storm preceding an accident is severe…In [a prior case] for example, the court vacated a jury verdict in favor of plaintiff which he obtained at trial upon proof that the time between plaintiff’s fall and the cessation of the storm which created the condition alleged was insufficient as a matter of law…Specifically, the court noted that because of “the severity [of] the ice storm, the second worst to strike this area in 50 years, [which] was followed by temperatures which never rose above 32 degrees Fahrenheit and reached a low of 17 degrees Fahrenheit on the morning of the accident,” the 30 hours between the storm’s cessation and plaintiff’s accident was insufficient as a matter of law to impose an obligation upon the City of New York to clear the snow at the location of plaintiff’s accident…Significantly, on the issue of the reasonableness between the cessation of the storm and how long thereafter snow removal efforts were undertaken the court in [in that case] found it dispositive that the City of New York had not cleaned the area of plaintiff’s alleged fall because it had so much snow to clear and over a wide area such that its resources were limited[.]
The evidence in this action:
The City submitted climatological reports evincing that on January 25, 2011, it snowed and accumulation was one inch. Thereafter, on January 26th, it snowed again, and accumulation was
8.3 inches. It snowed again on January 27th, and accumulation was 6.7 inches. The next two days, only a trace amount of snow fell. On the 30th, no snow fell at all and on the 31st there was again only a trace amount of snow. From the 25th through the 31st, the temperature dipped below freezing and only rose above freezing by one degree on the 25th, 27th, 29th, and the 30th.
And the City’s entitlement to summary judgment based on that evidence:
Based on the foregoing, the City established prima facie entitlement to summary judgment. As discussed above, the issue of whether the time between a storm’s cessation and an accident is sufficient to impose an obligation upon a municipality to clear snow from its sidewalks can and has been decided as a matter of law. The relevant inquiry is whether the storm preceding an accident is severe enough so as to make any delay in clearing snow reasonable as a matter of law…Here, the climatological reports indicate that only four days prior to plaintiff’s accident, it had snowed and there was an accumulation of at least 15 inches. Moreover, in the seven days preceding plaintiff’s accident, the temperature dipped below freezing, rising above that mark by only one degree. Accordingly…the City’s failure to clear the sidewalks abutting 1084 within the four days of cessation of a major snowfall, was not unreasonable as a matter of law. Thus, the City established prima facie entitlement to summary judgment for this reason alone.
Additionally, however, the City’s evidence, specifically plaintiff’s own testimony established that the condition upon which he slipped was neither unusual nor extraordinary and that, in any event, the City had no notice of the same’s existence. As noted above, a municipality cannot be held liable for a defective snow/ice condition unless it is established that it is unusual, exceptional, or different in character from those conditions that normally exist during the winter…Here, plaintiff testified that the ice upon which he fell was only a foot in length and a foot wide. He also testified that the ground was otherwise dry and substantially free of snow. Thus, the icy condition alleged was quite small and it cannot be credibly argued that it was either unusual or extraordinary given the average winters at the instant location. Thus, the City established prima facie entitlement to summary judgment on this additional ground.
Lorman v. Emil Mosbacher Real Estate LLC, 2015 NY Slip Op 32379(U) (Sup. Ct. Bronx Co. decided on November 10, 2015),
Supreme Court summarized the background:
This matter arises out of an alleged slip and fall incident that occurred on January 26, 2011, at approximately 8:00 AM, on the public sidewalk in front of the real property located at 3926 White Plains Road in the Bronx, New York. At relevant times, the real property was a commercial premises owned by Defendant and leased to the third-party defendant Winston Williams, d/b/a Country Kitchen.
The deposition testimony:
Plaintiff testified that on the date of the accident, he left his home located on the south side of East 223rd Street, intending to walk to the 225th Street subway station. Plaintiff walked about fifty (50) feet from his house when he allegedly slipped and fell on ice located near the comer of White Plains Road and East 223rd Street. The incident occurred in front of a business that had a “Country Kitchen” sign up, but was not in operation. Plaintiff testified that he never saw anyone engage in any snow removal efforts at this location before this incident. Plaintiff described the ice condition that he encountered as “whitish” or “grey” that was approximately Yi to 3/4 of an inch thick. He testified that at the time of the accident, it was not snowing.
Co-plaintiff James-Lorman, Plaintiffs wife, testified that the accident location was usually not cleared of snow. She had traversed through the area earlier that day, but could not verify if there was an ice condition on the sidewalk. She did notice, however, that there was untouched snowfall on the sidewalk both before and after her husband’s accident. She was not aware of any complaints made to the building about snow and ice prior to this accident.
Wayne Cedena, Defendant’s property manager, testified that at the time of this accident, Defendant had leased the premises to a tenant, Winston Williams, d/b/a Country Kitchen.
According to the lease, the tenant – a restaurant – was to assume responsibility for maintenance of the abutting sidewalk. Mr. Cedena confirmed that as of January 26, 2C 11, the property was under renovations and therefore the restaurant was not open for business. Mr. Cedena was present at the site on two occasions between August 2010 and January 26, 2011, and no other representatives from Defendant visited the location. Further, Defendant had never received any prior complaints about snow or ice removal at the premises.
Gerald Miriscal testified on behalf of the City. Mr. Miriscal was employed by the New York City Department of Sanitation. He testified that the Department of Sanitation does not clear snow and ice from the sidewalks near this accident location. The Department did, however, clear the crosswalks in the area.
Defendant contends that it is entitled to dismissal of this action because this incident occurred during an ongoing winter storm, and therefore Defendant was s1atutorily absolved from any responsibility to clear snow and ice from the sidewalk during this time period, pursuant to New York City Administrative Code §16-123. Defendant submits a sworn report from a weather expert meteorologist Howard A. Altschule, who confirms that on January 26, 2011, a winter storm snowfall commenced at 7:40 AM and continued until 9:00 PM, when it changed into freezing rain. Mr. Altschule further notes that the air temperature was above freezing the prior day, and dipped below freezing the night before the accident. Thus, the alleged ice condition could have only formed hours before the accident. Because there was an ongoing storm, however, the property owner had until 11:00 AM on January 27, 2011, to clear any snow or ice. Defendant also argues that both Plaintiffs testified that there was no ice present the day before this accident, thus there is no ·evidence that the condition was in existence for a sufficient length of time. Defendant further asserts that it did nothing to create this allegedly hazardous condition, as all snow removal responsibilities were delegated to the tenant.
The City contends that it had no responsibility to engage in any snow removal efforts at this accident location under New York City Administrative Code §7-210, which obligates abutting property owners, not the City, to maintain sidewalks. Further, there is no evidence that the City caused or created the allegedly hazardous condition.
In opposition to Defendant’s motion, Plaintiffs’ argues that contrary to the Defendant’s contention, neither plaintiff conclusively testified that they did not see the ice patch in the area prior to the accident. Plaintiff only testified that it was “likely” he walked in the area the day before, but could not remember for sure, or remember definitively whether there was ice. While the co-plaintiffs testimony was inconsistent concerning the ice condition, any inconsistencies must be resolved in favor of the opponents to summary judgment. Further, Plaintiff submits an expert report from meteorologist Alicia C. Wasula, Ph.D. Dr. Wasula states, among other things, that Defendant’s expert relied on weather data from a weather station that was several miles away from this accident location. After reviewing Doppler photographs and other weather station data, Dr. Wasula opined that although there may have been precipitation in the area, it would likely have melted and dried up before it reached the ground until 1 point after the accident, when such precipitation began to accumulate. This is consistent with the testimony of both plaintiffs, to the effect that no precipitation was falling as of the time of the accident.
Defendant argues in reply, inter alia, that Plaintiffs’ expert report lacks credibility and merit as it relies on the testimony of the Plaintiffs as opposed to weather data. Moreover, Defendant argues that Plaintiff has submitted no evidence that it created or exacerbated the allegedly hazardous condition. Absent such evidence, Defendant argues 1hat it owed no duty to Plaintiffs and therefore is entitled to dismissal of this action.
The applicable law:
It is well established that landowners are under a duty to exercise reasonable care under the circumstances in the maintenance of their property…but may be excused from liability for hazardous conditions caused by an ongoing storm…A landowner’s duty to take reasonable measures to remedy a storm-created snow or ice condition does not commence until a reasonable time after the storm has ceased (Id.) While a defendant has no obligation to remove any snow or ice during the storm, liability may result if the efforts it did take created a hazardous condition or exacerbated the natural hazards created by the storm…As an example of “reasonable time” contemplated by this doctrine, landowners have four (4) hours after snowfall stops to remove show and ice conditions from abutting sidewalks, pursuant to the City of New York Administrative Code§16-123 (a). In addition, numerous courts have held that 1 ½ hours following cessation of a storm does not constitute “reasonable time” for which snow removal should have occurred…In order to establish a prima facie entitlement to judgment on the “storm in progress” doctrine, a defendant must establish that the plaintiffs fall was precipitated by a hazardous snow or ice-related condition caused by an ongoing storm[.]
The Court’s finding based upon the deposition testimony:
The above testimony demonstrates that, in fact, the condition of the sidewalk on the day before this accident is unsettled. Plaintiff Lorman did not precisely remember whether (1) he traversed through the precise accident location the day before his accident, or (2) there was an icy condition in the area the day before his accident. Plaintiff James-Lorman testified that she did not recall if the icy condition was present the day after her accident, when the area was covered by fallen snow. Therefore, resolving all reasonable inferences in the man1er most favorable to the opponent of a summary judgment motion, this testimony fails to conclusively establish the length of time this particular ice condition was in existence[.]
The issue of fact raised by the expert testimony:
Next, the deposition testimony and conflicting expert meteorologist ports further raise an
issue of fact as to whether the ice that caused plaintiffs fall formed overnight, or had been in existence for several days before the accident. Contrary to Defendant’s contentions, Plaintiffs expert report is in admissible form, and the expert affirms that the contents of her report are true and accurate. Further, a court is not precluded from considering an expert affidavit even where the expert was not disclosed during discovery pursuant to CPLR 3101(d)(1)(i)…Both experts agree that approximately four inches of snow fell in the area on January 21. Defendant’s expert states that, as of that date, some 6.5 inches of snow and ice were “on the ground” in “exposed, untreated, and undisturbed areas.” Air temperatures remained well below freezing from January 22 through January 24, with high daily temperatures only reaching the mid-twenties. On January 25, the day before the accident, there was a light snowfall in the area between 6:00 AM until approximately 12:00 PM. Both experts state that temperatures remained above freezing from 12:00 PM on the 25th through approximately 1 :00 AM on January 26, when temperatures dropped below freezing up until the time of the accident.
Defendant’s expert opined that “melting and refreezing process” occurred between January 20 and January 26, and these processes caused “new ice to form.” He alleged that new ice formed between midnight and l AM the day of the accident. He further alleged that a moderate snowfall commenced at around 7:46 AM on the date of the accident, and this snowfall accumulated a coating of 1/4 of an inch by the time of the alleged fall, enough to cause slippery surfaces. Plaintiff’s expert, on the other hand, opined that the ice that caused this accident originated over four days beforehand, as foot-traffic compacted the snow that had fallen on January 21. This ice condition, along with observed snow piles on either side of the sidewalk, would have begun to partially, but not completely, melt on January 25, only to refreeze during the overnight hours of January 26. Plaintiffs expert notes that ice of the condition observed by plaintiff – some 1 ½ to 3/4 of an inch thick, and gray in color with debris inside, could not have formed in the hours before the accident, because ice of this depth would not have had time to completely melt during the brief period of above-freezing temperatures on January 25. Rather, ice of this nature is more likely to have formed due to the compaction of old snow. Moreover, While Defendant’s expert alleged that snowfall commenced on January 26 at around 7:45 AM, the Plaintiffs expert opines that, upon review of radar animations in the area, it is likely that precipitation may have been falling at the time, but had been evaporating before it reached the ground. This comports with Plaintiffs’ testimony, where both alleged that it was not snowing at the time of the accident. Defendant urges that the Plaintiffs expert testimony is not credible or reliable because it “rejects” the “official weather data in favor of’ the plaintiffs testimony.
Defendant, however, offers no expert opinion rejecting the plaintiff’s expert’s methodology or conclusions.
And the Court’s finding:
At bottom, Plaintiffs expert’s non-speculative and non-conclusion opinion is sufficient to raise an issue of fact as to whether the ice condition that allegedly caused plaintiffs accident had existed for several days prior to this accident, and was not formed overnight or caused by an ongoing storm[.]
Rodriguez v. New York City Tr. Auth., 2015 NY Slip Op 51771(U) [Sup. Ct. N.Y. Co. decided on December 4, 2015]
In this personal injury action in which plaintiff allegedly slipped and fell on a subway platform, the Court summarized the facts:
Plaintiff alleges that, on December 17, 2013 at approximately 7:00 PM, she had just descended the staircase from the IRT Division downtown 1 train platform at the 59th Street Columbus Circle station, when she slipped and fell on water roughly five-and-a-half feet from stairway P4B on the IND Division downtown ABCD train platform…Defendants move for summary judgment on two grounds: first, that recovery is barred by the storm in progress doctrine; and, second, that defendants neither created the defective condition causing plaintiff’s injury nor had actual or constructive notice of the defect.
The “storm in progress” doctrine:
As a general matter, common carrier defendants in negligence cases are “subject to the same duty of care as any other potential tortfeasor—reasonable care under all of the circumstances of the particular case.”…Thus, like any private property owner, the instant transit defendants “cannot be held liable for a fall caused by a winter storm while the storm is in progress, or for a reasonable time thereafter[.]”
The defendant’s submission in support of their motion for summary judgment:
To establish that a storm was in progress, defendants submit employee testimony and contemporaneous business records contending that snow was falling at the time of plaintiff’s injury.
Plaintiff’s submission in opposition, including climatological records:
[P]laintiff submits certified National Oceanic and Atmospheric Administration climatological records evidencing that snowfall had ceased more than two hours prior to plaintiff’s injury, and that 1.5 inches of snow fell that day…In addition, plaintiff notes that the incident occurred indoors and argues that defendants have not established a link between the dangerous condition and the alleged storm in progress[.]
[D]efendant notes that the meteorological data that plaintiff submits were recorded roughly 20 blocks from the scene of plaintiff’s injury and therefore snow “could” have been falling on the street above where plaintiff fell at 7:00 PM…Furthermore, defendant disputes that the incident occurred indoors, arguing that “[c]ontrary to Plaintiff’s opposition papers” the incident occurred “on a stairway that is exposed to the outside elements (snow, wind, etc.).”…Thus, a disputed issue of fact arises as to whether a storm was in progress at the time of the incident or whether a reasonable period had elapsed following its cessation.
And the Court’s analysis:
This Court does not, on this motion, make any findings about the applicability of the storm in progress doctrine. Rather, whether the storm in progress doctrine is applicable is an issue for tria
* * *
Moreover, there is a triable issue of fact as to whether the water on the platform where plaintiff slipped and fell could have been tracked from the 1.5 inches of snow that fell outside the station. Although defendants point to cases barring liability for indoor falls based on the storm in progress doctrine, those cases all involved a fall occurring near the entrance of the indoor structure[.]
Unlike the cases cited by defendants, there is no evidence on this motion that the platform on which plaintiff fell was in a generally wet state as a result of other persons tracking moisture inside the premises…To the contrary, defendant NYCTA’s own business records and the testimony of its employee Waqas Amhed, on duty as a station cleaner during the day of the incident, state that the area around the incident was dry[.]
Denying the motion, concluding that:
Viewing the circumstances in a light most favorable to the non-movant, plaintiff appears to have fallen on an indoor, lower level subway platform well below the street level…Although defendants dispute plaintiff’s claim that she fell indoors, defendants did not submit any schematics, station plans, or photographs to substantiate their counsel’s assertion that the incident occurred “on a stairway that is exposed to the outside elements (snow, wind, etc.).”…Indeed, the stairway P4B bears a “P” designation, presumptively indicating that it accesses a platform.
Moreover, given the paucity of evidence of the station structure and of the train routes, it cannot be determined here whether the area where plaintiff allegedly fell was located below a grate or other structures that could have allowed moisture to enter from the street, or that moisture could have been tracked by passengers from such an area in one of the 59th Street stations, or from trains that had traversed outdoor rights of way with above-ground platforms exposed to the elements.
Michael v. Fordham Univ., 2016 NY Slip Op 30032(U) [Sup. Ct. N.Y. Co. decided on January 6, 2016] (Edmead, J.)
The Court summarized the facts:
On January 5, 2014, at approximately 10:30 a.m., plaintiff slipped and fell on a public sidewalk in front of McMahon Hall, located at Fordham’s Lincoln Center campus at 155 West 60th Street, New York, New York.
Plaintiff’s deposition testimony:
Plaintiff testified that she was dropping off her daughter at defendant university’s campus (“Fordham”) to attend a retreat. She recalled that it was “overcast” and “misty” earlier that day, when she left that morning to drive to Fordham, and that by the time they reached the school, “it was overcast and…brightening [up]”…Plaintiff did not recall whether there was any type of precipitation falling when she arrived at Fordham, but stated that the temperature was “[a]round…freezing”[.]
Upon arrival, plaintiff parked her car in front of McMahon Hall and exited her vehicle, “went around the back of the car, over a little bit of snow, before [she] stepped onto the sidewalk”…There was no debris, trash, or puddles on the ground where she was walking. Plaintiff was in the process of discarding coffee cups in the trash can located in front of McMahon Hall, when she slipped and fell on the sidewalk at approximately 10:30 a.m.
After her fall, plaintiff realized that she had slipped on ice, which she described as “frosty, white, [and] shiny”…According to plaintiff, the ice “seemed to take up the whole part of that cement colored part of the sidewalk”…The ice that she slipped on was not black ice, not dirty, and when asked if the color of the ice was cloudy, she stated, “I wouldn’t say-it was cloudy in places, I guess”…Plaintiff further testified, “I believe I didn’t pay much attention to it, you know. It just looked like ice when I was down there, and it was cold like ice. I noticed it expanded the whole sidewalk”…She did not observe any salt or sand in the area where she fell.
The deposition testimony of Fordham’s public safety supervisor:
George Smith (“Smith”) is defendant’s Public Safety Supervisor, responsible for overseeing a contract guard force, monitoring fire burglar alarms, and the “[o]verall supervision of the Public Safety operation”…His department is responsible for responding to any incidents or accidents that occur on the grounds of Fordham’s campus, and for writing incident reports, but has no maintenance responsibilities.
On the date of plaintiff’s accident, Smith was working at Fordham’s Lincoln Center campus, where McMahon Hall is located. When Smith arrived to work at 6:00 a.m., it was “drizzling” at that time…At approximately 8:30 a.m., he was receiving reports from the security team that the rain had turned to freezing rain. At approximately 9:00 a.m., when the sidewalks started to become slippery, the Public Safety department advised the custodial staff that the rain had turned to freezing rain. Smith personally observed the freezing rain turn to ice on the sidewalk, approximately 200 feet away from where plaintiff slipped and fell. Due to the icy conditions, Smith closed off a nearby elevated plaza area of defendant’s campus. At 9:10 a.m., Smith advised fire safety guard Jerry Stynze “to notify the grounds[keepers] to make sure they were treating the walkways”…This action was memorialized in a log book, which is maintained by defendant’s employees.
Smith learned of plaintiff’s accident when he was called by a security guard who was on duty at McMahon Hall. When Smith responded to McMahon Hall, he spoke with plaintiff, who relayed to him that she fell while walking to a garbage can outside McMahon Hall. Plaintiff also indicated that ice was involved in her fall. Smith then observed the sidewalk outside of McMahon Hall there to be “very icy”…the ice “was clear. It was almost like black ice to me”…Smith did not recall whether the area where plaintiff fell had been salted or otherwise treated, and stated that “[o]nce the ambulance was notified and Custodial [staff] had come out…they applied further material on the sidewalk [area where plaintiff fell]”[.]
According to Smith, “it was still actively freezing rain” after the subject accident and that the freezing rain stopped “[l]ate into the afternoon”…Before leaving work that day, Smith looked at the surveillance video recording of plaintiffs fall, and saved a two-minute clip of footage of the accident “so that [he] would save the image and later as per discovery, [he] loaded it onto [a] flash drive”…No other footage around the time of plaintiff’s accident remains, as Smith explained, “it is a 30 day retrieval on the system…Smith did not look for anything earlier or later in the video recording.
And the deposition testimony of defendant’s facilities operations manager:
Vincent Kocovic (“Kocovic”), defendant’s Facility Operations Manager, was responsible for maintaining the mechanical and custodial aspects of Fordham’s Lincoln Center campus. On the date of plaintiff’s accident, Kocovic was also in charge of snow and ice removal and supervised mechanics, engineers, and cleaners.
According to Kocovic, there was freezing rain on the morning of January 5, 2014, at approximately 7:00 a.m., when he left for work. Kocovic described, “it wasn’t heavy rain or ice. It was in between, and it was consistent throughout the day”…When he arrived at work at approximately 8:00 a.m:, Kocovic went to each building on defendant’s campus and asked the security guards if there had been any complaints or problems relating to the inclement weather, and was told that there were none. When he walked around the campus at approximately 8:00 a.m., he did not notice any icy conditions on any of the sidewalks or entrances to the buildings. However, it was still freezing rain at that time, and after seeing on his phone that “it was going to rain, icy rain…all day”…Kocovic instructed a staff member to spread salt around the campus, including the public sidewalks abutting the campus. Kocovic stated that “due to the weather conditions, every time [he] salted, it would just melt and then freeze again…it was just the weirdest thing. I mean, I’d walk. I’d finish. When I turned around, it started, you know – it’s like I did nothing”…Over the course of the morning, prior to plaintiff’s accident, Kocovic and his co-workers spread “several bags” of salt over defendant’s campus, including the public sidewalks…Kocovic advised his boss, approximately 20 minutes before learning about plaintiffs accident, that they needed additional staff to assist with the icy condition on the sidewalks. Subsequently, additional employees, who had the day off, came in to assist with the salting duties.
In response to notification that someone had slipped and fallen on the sidewalk, Kocovic walked to McMahon Hall [and] assisted his co-worker in salting the subject area.
Fordham’s arguments in support of summary judgment:
[D]efendant argues that it owed no duty to plaintiff to clear the sidewalk on which she fell, until a reasonable time after the cessation of the storm, pursuant to the “storm in progress” doctrine. Defendant also argues that, pursuant to Administrative Code of City of NY §16-123 (“Removal of snow, ice and dirt from sidewalks; property owners’ duties”), its duty to clear the sidewalk abutting its premises does not begin until four (4) hours after the cessation of a storm. Based upon the deposition testimony of its employees, Smith and Kocovic, as well as multiple certified weather reports annexed to an expert affidavit by meteorologist Howard Altschule (“Altschule”), at the time of plaintiffs accident, and for one hour prior thereto, freezing rain was falling at defendant’s Lincoln Center campus, where plaintiff slipped and fell.
According to defendant, there are no genuine issues of material fact. Plaintiff’s description of the ice on which she fell is consistent with the type of fresh ice that would form during an active freezing rainfall. Defendant further argues that plaintiff’s testimony that it was sunny at the time of her accident, and that there was no precipitation, must be disregarded as a matter of law because it is not supported by any climatological records, pursuant to CPLR 4528 (“Weather conditions”).
Defendant contends that plaintiff’s expert witness, George Wright (“Wright”), confirms in his affidavit that there was ongoing freezing rain at the subject premises, approximately one hour before plaintiff’s accident and at the approximate time of plaintiff’s fall. Plaintiff’s expert also concedes that, at the approximate time of plaintiff’s accident, the sky was cloudy and the temperature was 31°F, below freezing, in the area where plaintiff fell. According to defendant, photographic evidence, taken from the surveillance video, shows prior snowfall removal, and depicts plaintiff on the sidewalk at a safe distance from any accumulated snow. In addition, defendant asserts that Wright fails to address that there was a Freezing Rain Advisory on the date of plaintiff’s accident, which had been in effect since 8:30 a.m., and remained in effect until after the accident. The balance of plaintiffs expert disclosure consists of speculation and, therefore, is insufficient to create a question of fact, given the existence of ongoing freezing rain. Although defendant attempted to clear the walkways on its campus, despite the fact that it owed no duty to pedestrians due to the storm in progress, plaintiff should be foreclosed from arguing that defendant’s efforts to clear the walkway caused, or contributed to, her accident, since she testified that she slipped on ice, and that no sand or salt was present in the area where she fell.
Plaintiff’s argument in opposition to Fordham’s summary judgment motion:
[D]efendant failed to establish entitlement to summary judgment. Neither the defendant nor defendant’s expert addressed plaintiffs claim that the subject ice existed for two days prior to plaintiff’s fall, the weather in the days preceding plaintiff’s accident, or the possibility that the ice at issue could have been the result of the storm two days prior to plaintiffs fall. Also, defendant presented no evidence of when the subject sidewalk was last cleaned or inspected, or the condition of the sidewalk prior to the precipitation on the morning of January 5, 2014.
* * *
Plaintiff points out that defendant’s own witnesses testified that defendant undertook a duty to clear the subject sidewalk. And, plaintiff’s expert Wright indicates that the ice which caused plaintiff to slip and fall was formed by a storm two days prior to plaintiffs accident, during which approximately 6.5 to 7.5 inches of snow fell in the vicinity where plaintiff fell. According to Wright, there was no further precipitation in the subject area until “[v]ery light” freezing precipitation began sometime between 9:00 a.m. and 9:15 a.m., on the morning of January 5, 2014…Defendant’s expert does not address precipitation or weather conditions prior to the morning of January 5, 2014, and asserts that light precipitation began at 9:08 a.m. that morning. As Wright’s opinion is based upon climatological data and testimony, any conflicting opinion of defendant’s expert merely raises an issue of fact.
Defendant’s expert affidavit does not address how the color of the ice described by plaintiff as cloudy could have been formed within one hour and twenty minutes of slight intermittent precipitation, at a temperature just one degree below freezing. And, defendant’s expert expressly asserted, and Wright agreed, that ice caused by freezing rain would “form a coating of glaze upon the ground,” however, the ice described by plaintiff was not a “glaze” but, rather, was “frosty,” “white,” “shiny,” and “cloudy in places.”
Defendant’s own witnesses confirm that the ice on which plaintiff slipped was not formed by the slight freezing precipitation on the morning of the accident. The deposition testimonies of Smith and Kocovic indicate that the subject sidewalk was salted before plaintiffs fall, and the salt would have continued to melt snow and ice at below freezing temperatures. As both parties’ expert witnesses agreed that the temperature was only one degree below freezing on the morning of January 5th, a large area of “frosty,” “white,” and “shiny” ice that was “cloudy in places” could not have been caused by the precipitation that morning, given that the subject area was salted.
According to Wright, such ice would be consistent with ice that had formed days before, and such ice, which had been in place for days, would not have melted as a result of being treated with salt.
Further, plaintiff contends that defendant caused or exacerbated the condition through its negligent, improper, or deficient clearing of the sidewalk, since the subject sidewalk had been cleared, ice was allowed to form, and it did not appear that the sidewalk had been treated.
And, plaintiff did not claim, as defendant misleadingly represents, that all precipitation had ended by the time she fell; plaintiff recalled that it seemed as if the sun was briefly breaking through at the time of her accident, and her testimony that it was “overcast” and “misty” on the morning of her accident is entirely consistent with the weather records.
[D]efendant contends that Wright’s expert affidavit is contradicted by the weather data, and is improperly based on information that was not solicited during discovery. The certified weather records confirm that by the time of the accident, one-tenth of an inch of ice was present on the subject sidewalk, and new ice was actively forming and accumulating.
Plaintiff also failed to establish that defendant’s snow removal efforts made the condition in front of McMahon Hall more hazardous. Plaintiff testified that there was no snow on the sidewalk in front of McMahon Hall at the time of her accident, and the video footage and photographs show that the subject sidewalk had been cleared of snow. Thus, the claim that defendant negligently removed snow from a prior storm is not supported by the record.
Also, there is no testimony indicating that the sidewalk in front of McMahon Hall had been salted at the time of plaintiffs fall. Nor is there evidence that defendant’s salting efforts, if any, made the condition in front of McMahon Hall more hazardous.
In addition, plaintiff failed to prove that the particular patch of ice upon which she fell was formed prior to the accident. Plaintiff’s use of the words “frosty,” “white,” and “shiny,” were not used to describe the specific patch of ice that caused her to fall, and she testified that she “didn’t pay much attention” to the particular patch of ice at issue…Defendant’s expert Altschule opined that, since plaintiff fell on ice on a sidewalk where there was no macadam or blacktop pavement underneath the ice to give it a black appearance, the ice on the cement would have appeared “frosty, white, and shiny.” Further, plaintiff testified that the sidewalk appeared…, and the defendant’s witnesses confirm that there was no snow found on the sidewalk in front of McMahon Hall.
In the absence of evidence that the subject sidewalk was salted before the accident, Wright’s opinion is flawed and should not be considered by this Court. Further, plaintiff’s expert affidavit fails to raise a triable issue of fact because it only establishes that there may have been snow “in the immediate vicinity” of the subject area, as opposed to the exact location where plaintiff fell. Moreover, there is no evidence to support Wright’s conclusions.
Defendant asserts that Kocovic testified that, although there are no written records of inspections, inspections are made on a daily basis by the Facilities Department and, during inclement weather, inspections are made and addressed on an hourly basis. Moreover, the failure of a landowner “to remove all snow and ice from a sidewalk or parking lot does not constitute negligence” and does not constitute the creation of a hazard. That a prior snowfall occurred in the days prior to plaintiff’s accident does not impose a duty upon defendant to remove every inch of snow or ice on the sidewalk. Furthermore, defendant’s ability to establish the last time snow removal efforts were made prior to the freezing rain on the date of plaintiff’s accident is irrelevant, given that there was an ongoing storm in progress during plaintiff’s accident, which yielded one-tenth of an inch of ice by the time of plaintiffs fall.
The applicable law:
“[I]t is settled that the duty of a landowner to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while the storm is in progress, and does not commence until a reasonable time after the storm has ended”…”In addition, pursuant to Administrative Coe of the City of New York § 16-123(a), building owners have four hours after a snowfall stops to remove snow and ice from abutting sidewalks, excluding the hours between 9 P.M. and 7 A.M.…Here, it is undisputed that there was ongoing freezing rain approximately one hour prior to, and during the time that plaintiff fell. Under such circumstances, defendant established that it did not have a duty to remedy the storm-related snow and ice conditions which allegedly caused plaintiff’s injuries[.]
And the issue of fact warranting denial of summary judgment:
However, plaintiff raised an issue of fact as to whether the dangerous condition upon which she fell existed prior to the storm in progress, and whether defendant created or had constructive notice of the condition…Neither the deposition testimony of defendant’s employees, nor the surveillance video recording establish, as a matter of law, that the ice upon which plaintiff allegedly fell did not exist prior to the precipitation of freezing rainfall on the day of plaintiffs accident. Furthermore, defendant did not supply evidence as to when the last time snow was removed from the subject sidewalk prior to the freezing rain storm on the day of plaintiffs accident, and the video recording does not clearly show the condition of the sidewalk where plaintiff fell due to the quality of the recording. And, defendant’s employees did not testify as to the condition of the specific sidewalk area where plaintiff fell, prior to the accident. Thus, while Kocovic’s deposition testimony establishes that defendant did not have actual notice of the alleged preexisting ice, the record does not establish that defendant lacked constructive notice of the alleged preexisting ice condition.
In any event, the parties’ conflicting expert affidavits as to whether the ice that allegedly caused plaintiffs accident was formed before the storm, or was created by the precipitation from the storm in progress, raises an issue of fact concerning constructive notice of the icy condition that caused plaintiff’s injury[.]
According to plaintiff, she fell on ice that was “frosty, white, shiny”…and “cloudy in places”…which covered the whole sidewalk area where she fell. Plaintiff’s expert opines that ice that is “frosty,” “white,” and “cloudy” in appearance would not have formed on the morning of January 5, 2014, but “would only have been formed by the winter storm that produced between 6.5 and 7.5 inches of snow at the [subject location] on January 2-3, 2014, since ice that is ‘frosty, white’ and ‘cloudy’ in appearance is not formed in less than two hours by freezing rain”…Plaintiffs expert further opines, “since the precipitation was very light and intermittent, there was not a sufficient amount of precipitation after 9:00 a.m. on January 5, 2014 to cover large portions of the ‘whole sidewalk’ in ice or to significantly contribute to the pre-existing slippery condition on the sidewalk where she fell”[.]
In contrast, defendant’s expert avers that plaintiffs “descriptions of the ice covering the entire area, the shiny appearance to the ice, and the other statements … are consistent with the freezing rain storm that [was ]in progress causing ice to accumulate”…and that “[t]he ice that was present at the time of [plaintiffs] slip and fall incident was a direct result of the freezing rain and winter storm that was in progress”…According to defendant’s expert, plaintiffs description of the ice as “frosty,” “white,” and “shiny,” is consistent with how ice that resulted from the storm in progress would have appeared on the cement sidewalk, since there was no macadam or blacktop pavement underneath the ice to give it a black appearance.
Lesson learned: CPLR §4528 provides only that United States Weather Bureau recorded observations of climatological conditions are prima facie evidence (not dispositive and irrebuttable proof) of the facts stated therein. As often as not, the reports, standing alone, do not suffice to resolve an otherwise disputed state of facts.