DEFENSE SUMMARY JUDGMENT DENIED IN STAIRWAY SLIP AND FALL WHERE QUESTION OF FACT AS TO "STORM IN PROGRESS"

Court: Supreme Court, Kings County, New York

Case: Janice Jefferson v. Mary Long

Date: Aug. 31, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury lawyer)

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DEFENSE FAILS TO SUPPORT ITS SUMMARY JUDGMENT MOTION IN SNOW AND ICE SLIP-AND-FALL CASE

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DAVID SCHMIDT, J.

Defendant Mary Long moves for summary judgment to dismiss the complaint, pursuant to CPLR 3212.

Plaintiff Janice Jefferson commenced this action to recover damages for injuries she sustained after she slipped and fell on ice as she was descending the front exterior steps of 385 Monroe Street, Brooklyn New York, where she resides. The accident occurred between 5:00 a.m. and 6:00 a.m. the morning of January 11, 2009. Plaintiff alleges that her fall was caused by an ice accumulation on the stairs as well as the improper configuration of the stairway.

For the following reasons, defendant's motion is denied.

I. Factual Background

A. Plaintiff's Deposition Testimony

Plaintiff Janice Jefferson testified that her accident occurred on January 11, 2009 at approximately 6:00 a.m. on the front exterior steps of 385 Monroe Street in Brooklyn. Plaintiff has lived at 385 Monroe Street since approximately 2000. Plaintiff was leaving to go to work when her accident occurred. It was dark outside, and had snowed the night before, after plaintiff had come into her building. It was very cold. Plaintiff did not meet anyone else as she made her way out of the building.

Plaintiff could not recall if there were lamps illuminating the front steps. Nonetheless, despite the darkness, plaintiff was able to see the steps as she descended them prior to her fall. As she descended the steps just before her accident, plaintiff observed that "[t]he steps and the sidewalk had been shoveled" and that "[t]herewas no snow on the steps." Plaintiff claimed, however, that she saw no rock salt on the steps.

Plaintiff did not observe any ice when she stepped onto the steps immediately prior to her fall. She also had not observed any ice on the steps the day before when she went in and out of the building. It was only after she fell that she looked back at the steps and allegedly saw a "sheet of ice" covering "the entire steps" that had apparently escaped her notice earlier.

Plaintiff testified that the accident occurred on the top landing of the steps, as she was stepping out onto the first step. She stated that the foot that slipped was the foot that was still on the landing as she stepped. As she slipped, she grabbed onto a flower pot attached to the side of the steps with her left hand. She could not recall if she was holding onto the flower pot before falling. Sometime within the next two days, plaintiff complained to the building superintendent, Charlene Harrison, about the lack of rock salt on the stairway. Plaintiff told Ms. Harrison, "that I slipped on the ice on the steps" because "there was no salt on the steps." According to plaintiff, Ms. Harrison "said she was sorry and that she had shoveled the snow but didn't go back to put the salt down yet and she said she was sorry it had happened."

Plaintiff testified she had never made any complaints to defendant about snow removal at the building, or about the condition of the front exterior steps. She was not aware of anyone else ever having made complaints about snow removal at the building. Plaintiff had never herself had any issues with snow removal prior to her accident. She did not know if anyone else in the building had slipped on the alleged condition, and did not ask any of the other tenants in the building if they had seen the alleged condition.

B. Defendant's Deposition Testimony

Defendant Mary Long testified that she has owned the property at 385 Monroe Street in Brooklyn since June 1993. The front exterior steps have not been altered since she purchased the property. They do not have a handrail. There are lights on either side of the front steps that operate on timers. The lights were operational in January 2009.

Ms. Long is generally at the premises twice weekly to take care of management functions and help with building maintenance. Ms. Long has an agreement with Charlene Harrison to provide minor maintenance, janitorial and snow and ice removal services for the premises. Ms. Harrison is an independent contractor who is paid weekly by cash for her services. Ms. Long paid Ms. Harrison for snow removal services during the week of the accident and retained a receipt.

Ms. Long does not tell Ms. Harrison how to prepare for impending snow, and has never had to tell her to shovel or clear the steps when snow accumulates. When there is an impending overnight snowstorm, Ms. Harrison generally calls Ms. Long that night and informs her that she is going to put down rock salt in anticipation of the storm. Ms. Long has never had to call Ms. Harrison to notify her about an impending snowstorm.

To facilitate snow and ice removal at the premises, Ms. Long provides an ice chopper, rock salt and four snow shovels, which are kept in the basement. Ms. Harrison has never informed her that any of these items or materials needed to be replaced or replenished.

Since purchasing the building, Ms. Long has never received any complaints about snow or ice accumulating on the exterior front steps. She is not aware of any slip‑and‑fall accidents ever occurring on the front steps. She has never been involved in any previous lawsuits regarding the front steps of the premises. She has never received any complaints regarding Charlene Harrison's performance of her work duties.

Ms. Long has never observed any defect in the front exterior steps, only normal "wear and tear." Ms. Long explained that by "wear and tear" she was not referring to any cracks in the concrete, but to the tendency of the paint to chip. No one has ever asked her to repair the steps, and she has never had to make repairs to the steps.

Ms. Long has never been told that the front exterior steps do not comply with the applicable building code. She has never received any violations from the City or State of New York regarding the front exterior steps. She has never been told that the steps required a handrail, or that the treads or risers were not uniform or exceeded allowable dimensions. In the year prior to the accident, she never received complaints that the lights above the steps were not working.

C. Affidavit Of Charlene Harrison

Charlene Harrison and her family have resided at 385 Monroe Street for more than 30 years, and her father formerly performed light janitorial and snow and ice removal tasks for Ms. Long. Ms. Harrison has been performing these tasks since 2004. Ms. Harrison does not receive a W-2 or a regular salary from defendant, but is paid in cash whenever she renders services.

Ms. Harrison typically watches the weather report on her local TV news program for reports of approaching snowstorms. Defendant keeps several shovels, an ice chopper and ice melt at the premises. If the weather report indicates that snow is coming, Ms. Harrison generally puts down ice melt prior to the snow's arrival to make shoveling easier. Ms. Harrison never received any complaints from anyone about the manner in which she performs snow removal services.

On January 10, 2009, Ms. Harrison recalls that it began snowing sometime in the evening. After it grew dark that night, she shoveled the front steps clear of the snow that had accumulated from the day's storm. She shoveled all of the accumulated snow off the steps, then thoroughly sprinkled the steps with ice melt. She then went to her apartment and did not go back to the front steps until after the time of plaintiff's accident.

Ms. Harrison became aware of plaintiff's accident a day or two later, when she and plaintiff were entering the building together. Plaintiff did not mention anything to her about slipping on snow or ice. Ms. Harrison did not observe any snow or ice on the steps after learning of plaintiff's accident.

Plaintiff typically knocks on Ms. Harrison's door to inform her of any problems plaintiff observes in her apartment or the building. However, plaintiff did not stop at Ms. Harrison's apartment either before or after the alleged accident to complain of snow or ice on the steps.

I. Discussion

To prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidentiary proof in admissible form. See Zuckerman v. City of New York, 49 N.Y.2d 557, 560 (1980). Once this showing has been made, the burden shifts to the party opposing the motion to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact. See Kaufman v. Silver, 90 N.Y.2d 204, 208 (1997). Additionally, in deciding the motion, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference. Negri v. Stop & Shop, 65 N.Y.2d 625, 626 (1985).

"To establish a prima facie case of negligence, a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff ... [L]iability for a dangerous condition on property is generally predicated upon ownership, occupancy, control or special use of the property." Nappi v Incorporated Vil. of Lynbrook, 19 AD3d 565, 566 (2d Dept 2005) (internal quotation marks and citations omitted).

A. Allegations of Icy Condition on Stairway

In support of her motion, defendant argues that she cannot be held liable for plaintiff's injuries because she was under no duty to plaintiff to remove any snow at the time of her accident. Specifically, defendant contends there was a storm in progress at the time that plaintiff claims she slipped and fell. In making this argument, defendant relies on the expert affidavit of George Wright, a meteorologist, who concludes that, based on his review of relevant climatological data, including certified records from the National Oceanic and Atmospheric Administration (NOAA), there was a storm in progress at the time plaintiff sustained her alleged injuries. See affidavit of George Wright, sworn to Oct. 26, 2011, annexed as Ex. K to defendant's affirmation in support. Those records establish that there was trace precipitation falling at the time of plaintiff's accident in several locations within a ten‑mile radius of the subject premises. Id. It is Mr. Wright's opinion that trace precipitation can constitute an ongoing storm. Id.

Defendant further argues that, even assuming that the storm ended when trace precipitation began falling, rather than when it ceased falling, she did not have sufficient time to remedy the alleged condition and therefore should not be held liable for plaintiff's accident. Neither of defendant's arguments persuade.

As an initial matter, notwithstanding defendant's expert's conclusion, courts have held that trace precipitation does not constitute an ongoing storm. See Powell v. MLG Hillside Assoc., 290 A.D.2d 345, 345-46 (1st Dept 2002). Thus, there is a question of fact as to whether or not there was a storm in progress at the time of plaintiff's accident.

More importantly, even if it could be established that there was an ongoing storm, the "storm in progress" defense would not relieve defendant of her duty, if, as plaintiff contends, Ms. Harrison, defendant's agent, caused and created the icy conditions on the steps through improper snow removal efforts.

"[O]nce a property owner undertakes to remove the snow or ice from the sidewalk, he or she must do so with reasonable care, and liability may result if it is shown that they made the sidewalk more hazardous." Friedman v. Stauber, 18 AD3d 606, 607 (2d Dept 2005). Thus, to succeed on her motion, defendant has the initial burden of making a prima facie showing that her snow removal efforts did not create or exacerbate the allegedly dangerous condition on the steps. See Schwint v. Bank St. Commons, LLC, 74 AD3d 1312, 1313 (2d Dept 2010).

Here, it is undisputed that Charlene Harrison undertook snow removal activities the night before Jefferson allegedly slipped and fell. Contradicting Ms. Harrison's testimony, plaintiff testified that she saw no evidence of salt or other de‑icing agent on the steps after she fell. Further, plaintiff stated that Ms. Harrison admitted to her within days of the accident that she had neglected to put down salt down after she had shoveled the steps. Given the conflicting testimony as to what Ms. Harrison's snow removal activities consisted of, "a triable issue of fact exists as to whether the defendant's snow‑removal efforts created the icy condition or exacerbated a natural hazard created by the storm." Brightley v. City of New York, 29 AD3d 926, 926-27 (2d Dept 2006).

Nevertheless, defendant argues in her reply papers that Ms. Harrison's admission and apology, as testified to by plaintiff, is inadmissible hearsay because Ms. Harrison is an independent contractor and, therefore, not a proper speaking agent of defendant. See e.g. Raczes v. Horne, 68 AD3d 1521, 1522-23 (3d Dept 2009). However, "it is well established that hearsay evidence may be considered in opposition to a motion for summary judgment, provided that it is not the only proof relied upon by the opposing party." Biggs v. Hess, 85 AD3d 1675, 1676 (4th Dept 2011). In this instance, plaintiff relies not only on the alleged apology she claims that Ms. Harrison made but also on her own testimony that she herself had not seen any salt or other ice melt on the stairs at the time of her accident.

In sum, defendant has not met her burden of proving that her agent, Ms. Harrison, did not cause and create the alleged dangerous icy condition on the steps through improper snow removal. There is a question of fact in the record whether due to Ms. Harrison's efforts, a more dangerous condition was created on the stairs at issue than if it had not been cleaned at all. Accordingly defendant's motion for summary judgment on the aspect of plaintiff's claim, is denied.

B. Allegations of a Defective Staircase

Besides the alleged ice accumulation on the stairs, plaintiff also alleges that her injuries were caused by defendant's negligence in maintaining the front stairway in a dangerous and hazardous condition. The deficiencies identified by plaintiff's engineer in his expert affidavit include a lack of: (i) sufficient exterior lighting, (ii) handrails, (iii) level and true tread widths, (iv) constant riser heights, and (v) non‑skid surfaces. Plaintiff also claims that these defective conditions constitute violations of applicable building codes, including New York State Uniform Fire Prevention and Building Code Sec. 1245, Property Maintenance Code of New York State Sec. 302.3, and the Administrative Code of the City of New York (Administrative Code) Secs. 27-127, 27-128, 27-375 and 27-376.

As an initial matter, defendant argues, and the court agrees, that plaintiff cannot maintain her claim to the extent it is predicated on violations of Administrative Code Secs. 27-127 and 27-128. That is because these provisions "are non‑specific and reflect only the general duty to maintain the premises in a safe condition." See Jang Hee Lee v. Sung Whun Oh, 3 AD3d 473, 474 (2d Dept 2004). As such, they do not provide a basis for liability. Id.

For the same reason, plaintiff's allegations based on violations of the Property Maintenance Code of New York State Sec. 302.3 and New York State Uniform Fire Prevention and Building Code Sec. 1245 are insufficient to impose liability on defendant. Like Administrative Code Secs. 27-127 and 27-128, these provisions of state law cannot form a predicate for liability because said provisions are non‑specific and reflect simply a general duty to maintain the premises in a safe condition. See expert affidavit of Robert L. Schwartzberg, sworn to Dec. 30, 2011 (describing general nature of aforementioned provisions), annexed as Ex. D to plaintiff's affirmation in opposition. Thus, these provisions as well cannot form a basis for liability.

Defendant also argues, convincingly, that plaintiff's claim cannot be maintained to the extent they are grounded on violations of Administrative Code Secs. 27-375 and 27-376.

Administrative Code Sec. 27-375 requires that interior stairs conform to certain requirements, including, among other things, handrails that meet certain criteria, riser height and treads that are constant throughout a stairway and non‑skid surfaces on treads and landings. Administrative Code Sec. 27-376 provides that when exterior stairs are being used as an exit in lieu of interior stairs then they must comply with all of the requirements for interior staircases as set forth in section 27-375.

Specifically, defendant argues that none of these code provisions apply because (i) the exterior steps at issue are not being "used as exits in lieu of interior stairs," and, in any event, (ii) the building was built prior to the enactment of these regulations and is exempt from these sections of the code. In support, defendant points to pictures (in plaintiff's expert's report) that demonstrate that the exterior stairs at 385 Monroe Street are not being used as an exit in lieu of interior stairs. Defendant also submits publicly available records from the Department of Buildings, establishing that the subject premises was built in 1914, prior to the enactment of the 1968 Code on which plaintiff's expert relies. See defendant's reply affirmation, Ex. A. As plaintiff has failed to bring any evidence to counter defendant's showing, she cannot maintain her claim in so far as they are based on violations of Administrative Code Secs. 27-375 and 27-376.

Nevertheless, defendant may still be liable on the basis of common law negligence. "[T]he absence of [code] violations only absolved the defendants of the mandatory duty that such provisions might otherwise impose and is not dispositive of the plaintiff's allegations based on common‑law negligence principles." Zebzda v.. Hudson St., LLC, 72 AD3d 679, 680-81 (2d Dept 2010) (citations omitted).

Here, given the sharply differing opinions of the parties' respective engineering experts on numerous issues relating to acceptable building safety standards and practices, including, for example, whether flower urns are an adequate substitute for handrails, defendant has not carried her burden to demonstrate her entitlement to judgment as a matter of law.

Accordingly, it is

ORDERED that defendant Mary Long's motion for summary judgment to dismiss the complaint, is denied.

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