July 11, 2013
DAVID L. STANFORD, SR., Plaintiff,
HUA DA INC., HAO CHENG CHINESE EATIN & TAKEOUT INC., QING ZHONG LIN, WAN PING LIN and SZE LEUNG KWOK, Defendants. Index No. 116605/2008
DECISION and ORDER
Shlomo S. Hagler, J.S.C.
Defendants Hua Da Inc., Hao Cheng Chinese Eatin & Qing zhong Lin, Wan Ping Lin and Sze Leung Kwok, (collectively, "defendants") move under motion sequence number 002, for an order, pursuant to CLPR § 3212, granting them summary judgment dismissing the complaint. Plaintiff David L. Stanford, Sr. ("Stanford" or "plaintiff) opposes the motion.
This is an action for personal injuries sustained by plaintiff in a slip and fall in front of defendants' restaurant located at 130 Ninth Avenue, New York, New York. On the night of February 11, 2006 through the early morning hours of February 12, 2006, plaintiff spent an evening in New York City, where he visited a restaurant and at least two bars. (Examination Before Trial of David L. Stanford, Sr., dated December 13, 2011, ["Stanford EBT"], at pp. 20, 25, 29) During that time period, it was snowing and several inches had accumulated on the ground. (Stanford EBT, at p. 36.) On his way back from a bar to a subway station to return to his hotel, plaintiff slipped in front of defendants' restaurant, fell and broke his ankle, which resulted in hospitalization and surgery.
(Id., at p. 34.) Plaintiff also claims his injuries required extended bed rest, physical therapy, and an inability to return to work for a long period of time. (Id., atpp.59-96.) Plaintiff is seeking recompense for these injuries.
Defendants are seeking summary judgment to dismiss plaintiffs complaint arguing that they were under no obligation to remove the snow until a reasonable time after the snow had stopped falling. (Affirmation of Defendants' Counsel in Support of Defendants' Motion, at |5.) Plaintiff contends that the defendants removed snow during the day, which resulted in a even more dangerous condition, precluding "snow in progress" from being a prima facie defense. (Affirmation of Plaintiffs Counsel in Opposition to Defendants' Motion, at "[[17.) While neither plaintiff nor defendants mention in their pretrial depositions anything regarding whether or not there actually was snow removal on the day in question, plaintiff has submitted an affidavit supplementing his deposition testimony, which avers that he saw evidence of snow removal. (Affidavit of David L. Stanford, Sr., dated January 31, 2013 ["Plaintiffs Aff."], at Exhibit B to Plaintiffs Affirmation in Opposition, at p. I.)
The movant has the initial burden of proving entitlement to summary judgment. (Winegrad v N.Y.U. Medical Center, 64 N.Y.2d 851 .) Once such proof has been offered, in order to defend the summary judgment motion, the opposing party must "show facts sufficient to require a trial of any issue of fact." (CPLR § 3212[b]; Zuckerman v City of New York, 49 N.Y.2d557 ; Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065 ; Freedman v Chemical Constr. Corp., 43N.Y.2d260 ; Spearmon v Times Square Stores Corp., 96 A.D.2d 552 [2d Dept 1983].) "It is incumbent upon a [party] who opposes a notion for summary judgment to assemble, lay bare and reveal his proof, in order to show that the matters set up in his [complaint] are real and are capable of being established upon a trial." (Spearmon, 96 A.D.2d at 553, quoting Di Sabato v Soffes, 9 A.D.2d 297, 301 [1st Dept 1959].) If the opposing party fails to submit evidentiary facts to controvert the facts set forth in the
movant's papers, the movant's facts may be deemed admitted and summary judgment granted since no triable issue of facts exists. (See Kuehne & Nagel, Inc. v F.W. Baiden, 36 N.Y.2d 539 .)
It is well settled law that while a snowstorm is in progress, and for a reasonable time after it concludes, a landowner or possessor is under no obligation to remove the snow from his or her property.
(See Kinberg v New York City Tr. Autk, 99 A.D.3d 583-584 [1st Dept 2012].) However, if a landowner or possessor does undertake to remove the snow while the storm is in progress and the snow is removed in a negligent manner that creates an even more hazardous condition, the landowner or possessor will be liable for damages suffered as a result of that negligent snow removal. (See Marrone v Verona, 237 A.D.2d 805 [3d Dept 1997].) When a plaintiff brings suit for negligent snow removal that occurred while a storm is in progress, the defendant need not prove anything other than that it was snowing at the time in order to shift the burden of proof to the plaintiff that the defendant removed the snow negligently or created the dangerous condition. (See Pippo v City of New York, 43 A.D.3d 303, 304 [1 st Dept 2007].) Once the burden shifts, it is incumbent upon the plaintiff to show that there was snow removal, and that that snow removal was negligent. (See Kinberg, 99 A.D.3d at 583-584 [1st Dept 2012]; Gleeson v New York City Tr. Auth., 1A A.D.3d 616, 617 [1st Dept 2010].)
In the instant case, there is no dispute that there was a storm in progress at the time of the accident, thereby shifting the burden to the plaintiff. However, even if plaintiff s affidavit is admissible, and snow removal was performed by the tenant/possessor during the storm, the plaintiff has still failed to show that the alleged snow removal was performed negligently. Inasmuch as plaintiff, in opposition to defendant's motion, failed to present sufficient evidence that defendants created or exacerbated a dangerous condition through negligent snow removal, defendants cannot be held liable for the dangerous condition on the sidewalk. As a result summary judgment must be granted to defendants.
Accordingly, it is hereby
ORDERED, that this Court grants defendants' motion for summary judgment dismissing the complaint as to Hua Da Inc., Hao Cheng Chinese Eatin & Takeout Inc., Qing Zhong Lin, Wan Ping Lin and Sze Leung Kwok. The clerk of the court is hereby directed to enter judgment dismissing the complaint.
The foregoing constitutes the decision and order of this Court.