Sunday, January 19, 2014

Meteorologist Report Fails to Create Issue of Fact

            In Gibel v. Resnik Holdings (30761/2010, NYLJ 1202638795883, at 1, Sup., Westchester, decided January 8, 2014), on Sunday February 14, 2010, the plaintiff slipped and fell on chunks of ice in front of East 5th Street near its intersection with South Fulton Avenue, Mount Vernon.  Prior to the accident, it had snowed 10 inches on February 10, 2010, but there was no additional precipitation between then and the day of the plaintiff's accident.  On February 17, 2012, the plaintiff commenced a personal injury action against the defendant, the owner of the building located at 336 South Fulton Avenue, in Mount Vernon.  After the discovery process concluded, the defendant moved for summary judgment seeking to dismiss the plaintiff's complaint on the ground that the defendant did not create nor have notice of the icy condition which caused plaintiff's fall.

            In support of its motion, the defendant relied on, among other things, the affidavit of its president, who stated that in February 2010 he did not observe any condition on the sidewalk which would constitute a dangerous condition or defect.  The defendant also relied on his deposition, in which he testified that he did not receive any complaints regarding the condition of the sidewalk before plaintiff's accident, and that 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.  In opposition, the plaintiff argued that there are questions of fact regarding whether defendant created the icy condition.  In support of her opposition, the plaintiff submitted the affidavit of a meteorologist, who opined that the ice chunks upon which plaintiff fell were made by artificial means.

            The Westchester County Supreme Court ultimately granted the defendant's motion, thereby dismissing the plaintiff's claim, stating the following: "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 defendant or whether defendant had notice of the condition for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it...Plaintiff's attempt to raise an issue of fact by submitting the affidavit of [a Meteorologist] is unavailing because [his] opinion that the ice chunks upon which plaintiff fell were artificially made is pure speculation.  [He] did not observe the ice chucks which caused the fall or even the area where plaintiff fell.  Rather, he bases his opinion solely on the weather conditions in New York City at the time of plaintiff's accident.  Accordingly, defendant's motion for summary judgment dismissing the complaint is granted." 

Salvatore R. Marino, Esq.

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