Rodriguez v. Woods

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered March 11, 2013, which granted defendant City of New York’s motion for summary judgment dismissing the complaint and all cross claims as against it, reversed, on the law, without costs, and the complaint reinstated.

In this action for personal injuries allegedly sustained by plaintiff on December 23, 2008, when she fell on a sidewalk, plaintiff testified at her deposition that the area where she fell was “dirty” with “snow layers on top of layers,” which she later clarified to mean “slushy ice” that was “clean, like slippery, flat” and had a little snow on top of it. In opposition to the City’s motion for summary judgment, plaintiff submitted an affidavit in which she explained that she fell on a patch of snow and ice that was about two feet wide by three feet long, and that the patch of snow and ice was “one (1) inch thick, flat, hard, and dirty, as if it had existed for several days.” This deposition testimony and affidavit, taken together, cannot reasonably be construed as being inconsistent or feigned. Any inconsistencies in how plaintiff described the patch of snow and ice on which she slipped simply create a triable issue of fact (see Rodriguez v New York City Hous. Auth., 194 AD2d 460 [1st Dept 1993]). Further, we have held, contrary to the City’s argument, that snow and ice left on a sidewalk after a storm can constitute an “unusual and dangerous condition” (see Ferguson v City of New York, 201 AD2d 422, 424 [1st Dept 1994]).

The main point of contention on this appeal is whether plaintiff raised an issue of fact as to whether the ice on which she slipped formed within a sufficient amount of time prior to the accident for the City to have cleared it. The City disputes plaintiffs claim, and her expert meteorologist’s opinion, that the ice was created during a four-inch snowfall that occurred four days prior to the accident, leaving the City adequate time to address the condition (see Ferguson, 201 AD2d at 424). Instead, it argues that the meteorological history for the dates in question establishes, as a matter of law, that there was insufficient time.

The parties agree on the history itself: that four inches of snow fell on December 19th (four days before the accident), one-half inch on December 20th (three days before) and two tenths of an inch on December 21st (two days before). After the third snowfall, non-freezing rain fell, and temperatures remained above freezing for several hours. On the day of the accident, the average temperature was 25 degrees, with a high of 31 degrees and a low of 18 degrees. However, the City offered no analysis or interpretation of this raw data, and offered no support for its attorney’s conclusory statement that the ice formed 48 hours before the accident, too soon for the City to have addressed it. Plaintiff, on the other hand, submitted the affidavit of an expert meteorologist, who opined that the combination of the freezing temperatures, together with the warmer temperatures and falling rain on December 21, melted the small amounts of snow that fell on December 20th and 21st. According to the expert, because the rain that fell on December 21 would not have frozen, the patch of ice that plaintiff attested to have slipped on resulted from the December 19th storm.

“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” (Massey v Newburgh W. Realty, Inc., 84 AD3d 564, 566 [1st Dept 2011] [emphasis added]). Accordingly, because it failed to offer an expert opinion, in addition to the meteorological records, the City’s motion should have been denied without regard to the sufficiency of plaintiffs papers in opposition (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). While, as the dissent notes, no expert affidavit was required by this Court in Daley v Janel Tower L.P. (89 AD3d 408 [1st Dept 2011]), it is worth noting that there it was hardly needed. That is because in Daley “the climatological reports showed that it last snowed more than one week prior to plaintiffs fall and that during the three-day period prior to plaintiffs fall, temperatures remained well above freezing” (89 AD3d at 409). Here, by contrast, the climatological reports showed that, except for a few hours of above-freezing temperatures and non-freezing rain, temperatures generally remained below freezing for the entire period between the December 19 storm and the accident four days later. Plaintiffs expert opined that these conditions were suitable for the ice that formed as a result of the initial storm to remain, but not for the formation of new ice, which the City would have had insufficient time to clear. Without an expert to interpret the meteorological record in a way that would disprove this theory, the City failed to establish a right to judgment as a matter of law.

In any event, plaintiff raised an issue of fact through her submissions. There was no basis for the motion court to characterize her expert’s affidavit as “all speculation” (Rodriguez v Woods, 2013 NY Slip Op 33730[U], *3 [Sup Ct, NY County 2013]). It was based on undisputed meteorological records, took plaintiff’s description of the ice into account, and explained how the meteorological events led to the formation of that particular patch of ice (compare Perez v New York City Hous. Auth., 114 AD3d 586, 586 [1st Dept 2014] [rejecting defendant’s expert affidavit as speculative “because it failed to take into account plaintiff’s testimony that the snow and ice had been on the sidewalk for approximately four days after NYCHA employees had piled it up onto the curb, and only addressed the general conditions in the vicinity rather than the origin of the specific ice and snow condition on which plaintiff alleges she fell”]).

“Once there is a period of inactivity after cessation of [a] storm, it becomes a question of fact as to whether the delay in commencing the cleanup was reasonable” (Powell v MLG Hillside Assoc., 290 AD2d 345, 346 [1st Dept 2002]). Accordingly, it is for a jury to decide whether the ice on which plaintiff slipped was formed four days before the accident, as plaintiff contends, and whether that temporal gap was a sufficient period of time for the City to remedy the condition. We reject the City’s reference to Valentine v City of New York (86 AD2d 381, 382 [1st Dept 1982], affd 57 NY2d 932 [1982]), which dealt with “a severe ice storm, described as the second worst in the preceding 50 years.” There is no suggestion that the storm that allegedly precipitated plaintiffs fall was comparably severe such that it would have been impossible for the City to clear the sidewalk within a four-day period. Certainly the City’s witness, a supervisor with the Department of Sanitation, gave no such indication.

Finally, we note the irony of the City’s witness having testified unequivocally that, as part of its snow and ice removal operations after any storm, the City does not perform any work on sidewalks. Accordingly, even if the City is ultimately vindicated in its position that it had insufficient time to clear the sidewalk before plaintiff fell, the truth will be that it would not have availed itself of that opportunity. Nevertheless, the question goes to the City’s duty, and the City cannot be found liable in the absence of such a duty having arisen at the time of the accident.

Concur — Mazzarelli, J.E, Moskowitz, ManzanetDaniels and Kapnick, JJ.