“Once there is a period of inactivity after cessation of a storm, it becomes a question of fact as to whether the delay in commencing the cleanup was reasonable.”
How later courts described this case
- “Once there is a period of inactivity after cessation of a storm, it becomes a question of fact as to whether the delay in commencing the cleanup was reasonable.”
Written by the judges who cited it.
The opinion
DeGrasse, J.,
dissents in a memorandum as follows: In my view, the motion court properly granted the summary judgment motion made by defendant the City of New York. Plaintiff was injured when she fell on a public sidewalk on December 23, 2008 at approximately 1:30 to 2:00 p.m. Plaintiff alleges that her fall was caused by ice that had formed as a result of a December 19, 2008 snowstorm. Citing Ferguson v City of New York ( 201 AD2d 422 [1st Dept 1994]) and other cases, plaintiff and the majority posit that there is an issue of fact as to whether the City failed to take measures to correct the condition despite having had a reasonable opportunity to do so. I dissent because the undisputed meteorological evidence shows otherwise.
Local climatological data shows that it snowed four inches on December 19, 2008, one-half inch on December 20, 2008 and two tenths of an inch on December 21, 2008. The same data indicates that the first snowstorm lasted from 11:00 a.m. on December 19 to 8:00 a.m. on December 20, 2008; the second was from 8:00 p.m. on December 20 to 2:00 p.m. on December 21, 2008. Accordingly, the last snowfall ended approximately 48 hours before plaintiffs accident. “The rule is well established that a municipality is not liable in negligence for injuries sustained by a pedestrian who slips and falls on an icy sidewalk unless a reasonable time has elapsed between the end of the storm giving rise to the icy condition and the occurrence of the accident” (Valentine v City of New York, 86 AD2d 381, 383 [1st Dept 1982], affd 57 NY2d 932 [1982] [citations omitted]). In this case, the City established its prima facie entitlement to summary judgment by showing that plaintiff s accident occurred within two days of the last of two back-to-back snowfalls that dumped at least 4x/2 inches of snow on the City. For example, in Martinez v Columbia Presbyt. Med. Ctr. ( 238 AD2d 286 [1st Dept 1997]), this Court reversed an order denying the City’s motion for summary judgment on the ground that the city established that it was under no obligation to remove snow and ice from the location of an accident “some 48 hours after the last of the two storms” (id. at 287).
*478 Although cited by the majority, Massey v Newburgh W. Realty, Inc. ( 84 AD3d 564 [1st Dept 2011]) does not support its position that the City’s motion was deficient for lack of an affidavit of an expert meteorologist. As noted by the majority, we stated in Massey that “[s]ummary judgment in a snow and ice case is proper where a defendant demonstrates, through climatological data and expert opinion, that the weather conditions would preclude the existence of snow or ice at the time of the accident” (id. at 566). Massey does not apply here because the motion before us does not involve an issue as to whether snow or ice existed. That much is undisputed. The issue here is whether a reasonable time for the City to remove the hazard had elapsed between the last snowfall and plaintiff’s accident. More importantly, it cannot be deduced from the language quoted above that an expert’s affidavit is a necessary component of a motion for summary judgment in a snow and ice case. We certainly imposed no such requirement in Daley v Janel Tower L.P. ( 89 AD3d 408 [1st Dept 2011]) where we granted the de fendants’ motion for summary judgment on the basis of climatological reports indicating that an icy condition could not have formed at the time of the alleged injury (see also Epstein v City of New York, 250 AD2d 547 [1st Dept 1998]; Martinez, 238 AD2d 286 ). In this case, as it was in Martinez , expert opinion is not necessary to establish the undisputed fact that plaintiff’s accident occurred within two days of the last snowfall.
For the reasons set forth by the motion court, the affidavit of plaintiff’s expert meteorologist fails to raise an issue of fact because it lacks probative force. Plaintiffs meteorologist states the following in his affidavit: “According to plaintiff she was caused to slip and fall on a patch of ice that was approximately one (1) inch thick, flat, hard and dirty. Based upon plaintiffs description of the icy and hazardous condition, as well as my review of the relevant weather data, it is my opinion to a reasonable degree of meteorological certainty, that the subject ice/ snow condition that caused plaintiff to fall resulted from the storm of December, 19, 2008.” The description of ice that was hard and one inch thick is not contained in plaintiffs deposition but is set forth in her affidavit opposing the City’s motion. In this regard, plaintiff’s affidavit conflicts with the following testimony that she gave at the deposition:
“Q. At the place of your accident, did you see anything on the ground before you fell?
“A. It was dirty. It had snow.
“Q. It was dirty with what?
“A. There was snow layers on top of layers.
*479 “[PLAINTIFF’S COUNSEL]: Just ask her to clarify when she says snow she means snow or ice.
“A. Slushy ice.”
“Slush” is not hard ice. It is commonly defined as “partly melted or watery snow” (see Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/slush). This is more than a matter of semantics because the meteorologist’s opinion is based on the premise that plaintiff slipped on a patch of hard ice. Accordingly, the meteorologist’s opinion is indeed speculative because its factual underpinning is based upon plaintiff’s affidavit which itself contradicts her prior sworn testimony (cf. Amaya v Denihan Ownership Co., LLC, 30 AD3d 327, 327-328 [1st Dept 2006]). In Epstein, we granted the City’s motion for summary judgment rejecting speculation that an injury was caused by an icy accumulation attributable to an “old” as opposed to a more recent snowfall ( 250 AD2d at 548 ). We should have reached a similar conclusion here. Finally, as stated above, the determinative issue is whether the City had reasonably sufficient time to clear the sidewalk before plaintiff s fall.