Cardona v. City of N.Y.

222 A.D.3d 711

202 N.Y.S.3d 213

Teresa CARDONA, plaintiff-appellant-respondent,

v.CITY OF NEW YORK, defendant-appellant,Olga Naranjo, respondent.

2020–09599

Index No. 515798/15

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 18, 2023

December 13, 2023

Zwirn & Saulino, P.C., Brooklyn, NY (Warren Zwirn, Klevis Peshtani, and Julie T. Mark of counsel), for plaintiff-appellant-respondent.

Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Jeremy W. Shweder and Eva L. Jerome of counsel), for defendant-appellant.

Salter & Ingrao, P.C., Mineola, NY (Kevin T. Salter of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, LOURDES M. VENTURA, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, and the defendant City of New York separately appeals, from an order of the Supreme Court, Kings County (Katherine A. Levine, J.), dated November 4, 2020. The order, insofar as appealed from by the plaintiff, granted the motion by the defendant Olga Naranjo for summary judgment dismissing the complaint insofar as asserted against her. The order, insofar as appealed from by the defendant City of New York, denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with one bill of costs to the defendant Olga Naranjo payable by the plaintiff, and one bill of costs to the plaintiff payable by the defendant City of New York.

The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained at approximately 10:00 a.m. on January 6, 2015, when she slipped and fell on a sheet of ice underneath accumulating snow as she descended a pedestrian ramp on a street corner in Brooklyn. Both defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. In an order dated November 4, 2020, the Supreme Court granted the motion of the defendant Olga Naranjo, and denied the motion of the defendant City of New York. The plaintiff appeals, and the City separately appeals.

The Supreme Court properly determined that the City failed to establish its prima facie entitlement to summary judgment under the storm in progress rule. The evidence submitted by the City in support of its motion, which included, among other things, a copy of the transcript of the plaintiff's deposition testimony, failed to establish that the ice upon which the plaintiff slipped and fell was the result of an ongoing storm as opposed to the accumulation of ice from prior snowfalls (see Stukes v. New York City Hous. Auth., 203 A.D.3d 980, 161 N.Y.S.3d 841 ; Taormina–Fucci v. 100–02 Rockaway Blvd. 26, LLC, 201 A.D.3d 766, 767, 156 N.Y.S.3d 917 ; Weiss v. Kraus Mgt., Inc., 164 A.D.3d 1292, 1293, 81 N.Y.S.3d 736 ).

Moreover, contrary to the City's contention, the evidence submitted by the City failed to establish, as a matter of law, that it lacked constructive notice of the condition (see Licari v. Brookside Meadows, LLC, 214 A.D.3d 780, 781–782, 186 N.Y.S.3d 55 ; Taormina–Fucci v. 100–02 Rockaway Blvd. 26, LLC, 201 A.D.3d at 767, 156 N.Y.S.3d 917 ), or that the ice condition was not of such a dangerous or unusual nature so as to impose a duty upon the City to remedy it (see Williams v. City of New York, 214 N.Y. 259, 264, 108 N.E. 448 ; Rodriguez v. Woods, 121 A.D.3d 474, 474–475, 994 N.Y.S.2d 583 ; see also Ferguson v. City of New York, 201 A.D.2d 422, 423–424, 607 N.Y.S.2d 939 ; Gonzalez v. City of New York, 148 A.D.2d 668, 670, 539 N.Y.S.2d 418, abrogated on other grounds by Love v. State of New York, 78 N.Y.2d 540, 543, 577...