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Wolfle v. City of New York

Other Lower Courts

December 19, 2007

Dolores Wolfle and August Wolfle, Plaintiffs,
v.
The City of New York and The New York City Department of Transportation, Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

OPINION

Thomas P. Aliotta, J.

In this personal injury action, plaintiff Dolores Wolfle alleges that on February 27, 2003, at approximately 8:00 a.m., while crossing Seacrest Avenue in Staten Island, New York, she slipped and fell on "black ice" in the roadway. It is undisputed that 16.3 inches of snow had fallen ten days earlier, on February 17, 2003. According to plaintiffs, the plowing of Seacrest Avenue by the New York City Department of Sanitation had left snow piled to a height of 18 inches along the adjacent sidewalk and curb. It is plaintiffs' claim that the subsequent failure to apply salt to the roadway allowed the runoff from the adjacent piles of melting snow to freeze on the surface when the temperatures fell, thereby creating the hazardous icy condition that caused Ms. Wolfle (hereinafter "plaintiff") to fall.

In moving for summary judgment, defendant the City of New York (hereinafter the "City") maintains on behalf of itself and its Department of Sanitation that the there is no proof that the alleged "black ice" in the subject roadway was the result of its snow removal efforts following the snowstorm of February 17, 2003. In support, the City submits certain climatological data from the National Climatic Data Center's measuring station at the Central Park Observatory. According to defendants, these reports indicate the following series of meteorological observations: (1) that 16.3 inches of snow had fallen on February 17, 2003; (2) that three days later, i.e., on both February 20th and 21st, the temperature had reached 50 degrees; (3) that on February 22nd and 23rd, it had rained; (4) that on February 24th and 25th, the temperature did not exceed 35 degrees; (5) that on February 26th, the temperature did not exceed 22 degrees; and (6) that at 8:00 a.m. on the date of the accident, the temperature was between 23 and 25 degrees. The City claims that in view of this data, i.e., the 50 degree temperatures followed by two days of rainfall, melting and subsequent freezing conditions, it is clear that plaintiffs' claim that the icy condition was the result of its incomplete snow removal efforts on February 17th and 18th is mere speculation and surmise.

The City also relies upon the deposition testimony of a New York City Department of Sanitation (hereinafter "DOS") supervisor, Kevin Finnerty, who stated that its "carting book" and "snow book" indicate that Seacrest Avenue was plowed and salted on February 17th, 2003 at 7:00 p.m., and again at 7:00 a.m. on the following morning (February 18th).

Finally, the City maintains that the papers before the Court are devoid of any evidence that it had actual notice of the specific area of ice upon which plaintiff purportedly fell, or that the alleged hazard existed for a sufficient length of time before the accident to permit defendants to have discovered and corrected the condition.

On the above basis, it is the opinion of this Court that the movants have made a prima facie showing that they neither created nor caused the hazardous icy condition, or had actual or constructive notice of the so-called "black" patches of transparent ice that allegedly had formed in the roadway where plaintiff fell (see Piacquadio v Recine Realty Corp., 84 N.Y.2d 967, 969). Particularly critical in this regard is the official climatological data which reveals that six days of above freezing temperatures and rainfall separated its snow removal efforts from the refreezing which preceded plaintiff's fall. Notably, defendants were not required to submit the affidavit of a licensed meteorologist to interpret the information contained in these National Climatic Data Center reports (see Dowden v Long Is. R.R., 305 A.D.2d 631).

In an attempt to defeat summary judgment, plaintiffs have submitted individual affidavits wherein they attest that the black ice which covered the subject roadway resulted from the piles of snow left by the City "that had melted and refroze." Moreover, they controvert the claim by DOS Supervisor Finnerty that Seacrest Avenue was salted or sanded after it was plowed. In addition to their lay opinions, plaintiffs have submitted the affidavit of Andrew Yarmus, a civil and environmental engineer, who opines that "the subject slip and fall occurred as a direct result of a lack of salting of Seacrest Avenue during a period of time when piles of snow were melting and the runoff was freezing, and that this lack of salting did not conform with either generally accepted and good custom and practice or Department of Sanitation practices for salting after snow storms."

Plaintiffs have failed to raise a triable issue of fact (see Grillo v New York City Tr. Auth., 214 A.D.2d 648; see also Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837-838; Zuckerman v City of New York, 49 N.Y.2d 557). Even when viewed in the light most favorable to them, plaintiffs have failed to adduce legally sufficient proof in support of their allegation that (1) the ice patch in question formed as the result of the February 17th snow accumulation (see Simmons v Metropolitan Life Ins. Co., 84 N.Y.2d 972, 973-974; Bonney v City of New York, 41 A.D.3d 404; Romeo v Ronald McDonald House, 25 A.D.3d 681, 682), (2) the accident resulted from the City's incomplete snow removal efforts (see Zabbia v Westwood, LLC, 18 A.D.3d 542, 544; Clapp v City of New York, 302 A.D.2d 347), or (3) the City had actual or constructive notice of the alleged condition and a reasonable time to cure (see Grillo v New York City Tr. Auth., 214 A.D.2d at 648-649). In this regard, it is the opinion of this Court that the conclusion reached by plaintiffs' expert was insufficient to raise a triable issue of fact since he failed to produce the "weather reports" on which he purportedly relied in reaching his opinion on causation, and further failed to address the all-important changes in the weather that developed after the storm, i.e., the above-freezing temperatures that persisted for days, as well as the periods of rainfall that preceded the return to below-freezing temperatures ( see Werny v Roberts Plywood Co., 40 A.D.3d 977, 978; Robinson v Trade Link Am., 39 A.D.3d 616; McCord v Olympia York Maiden Lane Co., 8 A.D.3d 634, 636). Under these circumstances, plaintiff's claim that the ice in the roadway upon which she fell was the result of the City's negligence in clearing the snow constitutes sheer speculation (see Romeo v Ronald McDonald House, 25 A.D.3d at 682).

Accordingly, it is

ORDERED, that the motion for summary judgment is granted and the complaint is dismissed; and it is further

ORDERED, that the Clerk enter judgment accordingly.

The foregoing constitutes the Decision and ...


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