This decision has been referenced in a table in the New York Supplement.
Morelli Ratner, P.C., by Adam E. Deutsch, Esq., New York, for Plaintiff.
Leahy & Johnson, P.C., by James P. Tenney, Esq., New York, NY, for Defendant.
LOUIS B. YORK, J.
This action seeks to recover monetary damages for personal injuries resulting from the plaintiff's slip and fall on black ice. Because plaintiff has been unable to rebut defendant's evidence tat defendant did not cause or create the ice, nor did it have adequate notice of the condition, defendant's motion for summary judgment dismissing this action is granted.
On February 11, 2012 at 8:15 a.m., plaintiff slipped and fell on a patch of black ice. The incident occurred on a public sidewalk abutting property owned by defendant.
In support of this motion, defendant introduced the testimony via deposition and affidavit of Mario Moran, its night supervisor of maintenance. Mr. Moran averred that at 10:oo p.m. on February 10, 2010, while a snowstorm was in progress, he and his crew began snow and ice removal, finishing at about 12:05 a.m. on February 11, 2010. At about 12:15 a.m. they salted the sidewalks abutting plaintiff's property. He continued to monitor the property throughout the night and at 5:30 a.m., they resalted the entire premises. At 7:30 a.m., he checked the pertinent area and found it completely clear of snow and ice.
Plaintiff stated that he never saw the ice before he fell. He estimated that it was one inch wide and three to four inches long.
The defendant presented the testimony of Thomas Downs, a meteorologist, one of whose specialties is applied climatological science. Mr. Downs, working from certified weather reports, stated that the snowfall occurred from late evening on February 9, 2010 through the day on February 10, 2010, culminating in 10 inches of snow on the ground in Central Park. Downs observed, that at Moran's last observation at 7:30 a.m. that the area in question was entirely clear at the time of plaintiff's accident at 8:15 a.m., there was much student traffic from the neighboring Montessori School  as well as parishioners of the defendant on their way to morning mass. In those 45 minutes between 7:30 a.m. and 8:15 a.m., anyone carrying a beverage could have dropped some of it on the sidewalk, and, given the below freezing temperature at the time, the liquid could have quickly frozen and formed the ice on which plaintiff slipped.
The Parties' Contentions
Defendant claims it is absolutely protected by Administrative Code 16-123, which states that an abutting landlord has four hours after the end of the snowfall, excluding the hours 9:00 p.m. through 7:00 a.m. Therefore, argues defendant, it had until 11:00 a.m. to start removing snow and ice and couldn't, therefore, be liable for plaintiff's injuries. Moreover, through Mr. Moran, defendant has shown that the premises was kept free and clear of snow and ice for 45 minutes prior to the time of plaintiff's injuries. It certainly did nothing to cause or create the hazardous condition and never received any notice of the existence of the patch of ice. Significantly, no one else, including the plaintiff, detected the ice before his accident. All of the efforts of Moran, argues the defendant, succeeded in making the premises safer for those using the abutting sidewalk.
Plaintiff's expert, also using weather reports and Doppler Radar concluded that up and down freezing temperatures caused new ice to form during the melting and freezing process, with the most melting and freezing occurring at 3:31 a.m. He speculates that the ice that caused the accident was the result of freezing and re-freezing 4 1/2 hours before the accident, which he surmises was missed by Moran and his crew. He ...