Moskowitz Passman & Edelman, Litchfield Cavo
HON. WILLIAM J. GIACOMO, J.S.C.
Factual and Procedural Background
On Sunday February 14, 2010 at about 7:30 p.m., plaintiff slipped and fell on chunks of ice in front of East 5th Street near its intersection with South Fulton Avenue, Mount Vernon.
On February 17, 2012, plaintiff commenced this personal injury action against defendant the owner of the building located at 336 South Fulton Avenue, Mount Vernon. Defendant then commenced a third party action against International Merchants Services, Inc., the first floor tenant of the subject building. Pursuant to the lease agreement between defendant and International Merchants Services, Inc. ("International"). International was obligated to remove snow and ice from the sidewalks surrounding the subject building. The third party action was discontinued on June 4, 2013 and counsel for International assumed defendant's defense in this action.
Defendant moves for summary judgment dismissing the complaint on the ground that it did not create nor have notice of the icy condition which caused plaintiff's fall. The facts disclose it had snowed 10 inches on Wednesday February 10, 2010; however, there was no additional precipitation between then and the day of plaintiff's accident. In support of its motion, defendant relies on the affidavit of Howard Resnik, defendant's president. Resnik states that in February 2010 he did not observe any condition on the sidewalk which would constitute a dangerous condition or defect. Further, at his deposition, Resnik testified the businesses in his building were closed on Saturday and Sunday that week and since there was no precipitation on those days, no one returned to the premises to check the condition of the sidewalk. Resnik also testified that he did not receive any complaints regarding the condition of the sidewalk before plaintiff's accident.
Defendant also relies on the deposition testimony of Gus Salcedo, an employee of International. At his deposition Salcedo testified that he performs snow and ice removal immediately after any snowfall. Thereafter, he walks around the area and applies salt if necessary.
In opposition, plaintiff argues that there are questions of fact regarding whether defendant created the icy condition. In support of her opposition, plaintiff submits the affidavit of Joseph Leonardi, a meteorologist, who opines that the ice chunks upon which plaintiff fell were made by artificial means.
Plaintiff also cross moves to amend its complaint to add International as a defendant in the main action. Plaintiff seeks to invoke the "relation back doctrine" in CPLR 203(e) to support her application since the statute of limitations has expired.
Defendant opposes the cross motion. It argues that plaintiff has known of International's obligation to provide snow removal for the subject building well within the three year statute of limitations. Defendant also argues that plaintiff's use of a cross motion in this way is procedurally improper.
Defendant's Motion for Summary Judgment
A party seeking summary judgment bears the initial burden of affirmatively demonstrating its entitlement to summary judgment as a matter of law. (See Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 ; Alvarez v Prospect Hospital, 68 N.Y.2d 320 ). "Once this showing has been made... the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (see Zuckerman v. City of New York, 49 N.Y.2d 557 ).
Defendant has establish prima facie entitlement to summary judgment by establishing that it lacked either actual or constructive notice of the condition that allegedly caused plaintiff's fall. Plaintiff's opposition to the motion fails to raise a triable issue of fact as to whether the ice condition was created by plaintiff or whether plaintiff had notice of the condition for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837 ; Dragotta v Walmart, Inc., 39 A.D.3d 800, 835 N.Y.S.2d 352 [2nd Dept 2007]). Plaintiff's attempt to raise an issue of fact by submitting the affidavit of Meteorologist Joseph Leonardi is unavailing because Mr. Leonardi's opinion that the ice chunks upon which plaintiff fell were artificially made is pure speculation. ...