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Colon v. 36 Rivington St., Inc.

Supreme Court of New York, First Department

June 13, 2013

Eusebia Colon, Plaintiff-Appellant,
v.
36 Rivington Street, Inc., et al., Defendants, Indochina Sino-American Senior Citizen Center, et al., Defendants-Respondents.

Law Office of William A. Gallina, PLLC, Bronx (Frank V. Kelly of counsel), for appellant.

Law Offices of Charles Siegel, New York (Richard O'Connell of counsel), for Indochina Sino-American Senior Citizen Center, respondent.

Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for Olson's Creative Landscaping and Olson's Creative Landscaping, Inc., respondents.

Acosta, J.P., Saxe, Renwick, Richter, Clark, JJ.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered May 17, 2012, which, to the extent appealed from as limited by the briefs, granted the motion of defendants Hui's Rich Mansion Condominium s/h/a Hui's Realty, Inc. and Rich Mansion Condominium for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs. The appeal from the aforesaid order, insofar as it granted the motions of the Olson's Creative Landscaping defendants for summary judgment dismissing the complaint and all cross claims, and of Indochina Sino-American Senior Citizen Center for summary judgment dismissing the complaint, unanimously dismissed, without costs, as abandoned.

Plaintiff alleges that, at about 10:00 a.m. on a Sunday morning in January 2009, she slipped and fell on about two inches of snow and ice covering the sidewalk abutting a building owned by the Hui defendants. In support of their motion for summary judgment, defendants submitted certified climatological records which showed that precipitation, including freezing rain and snow, had fallen for some 15 hours during the 24-hour period preceding plaintiff's fall, and had stopped at about 6:00 a.m. Pursuant to Administrative Code of City of NY § 16-123(a), defendants had until 11:00 a.m. to clear the snow and ice from the sidewalk. Since that period had not yet expired at the time that plaintiff fell, defendants established their entitlement to judgment as a matter of law (see Rodriguez v New York City Hous. Auth., 52 A.D.3d 299 [1st Dept 2008]).

In opposition, plaintiff failed to raise a triable issue of fact. Her argument that the snow may have accumulated from earlier storms is speculative and refuted by the climatological records (see Lenti v Initial Cleaning Servs., Inc., 52 A.D.3d 288 [1st Dept 2008]). Further, her contention that the condition may have resulted from the melting and refreezing of piles of snow made by defendant's handyman is not supported by his testimony, which described his general method of shoveling, not the conditions existing at the time of the accident. The theory is also contradicted by the climatological records, which show that only trace amounts of snow had fallen in the previous weeks and would have melted when the temperature rose above freezing, and that little accumulation developed in the day preceding plaintiff's fall (see Daley v Janel Tower L.P., 89 A.D.3d 408 [1st Dept 2011]).


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