Marazita v. City of New York

202 A.D.3d 951

163 N.Y.S.3d 219

Laura MARAZITA, appellant,

v.CITY OF NEW YORK, et al., respondents.

2020–01658, 2020–01659

Index No. 16846/14

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

Argued—December 2, 2021

February 16, 2022

Nguyen Leftt, P.C., New York, N.Y. (Stephen D. Chakwin, Jr., of counsel), for appellant.

Georgia M. Pestana, Corporation Counsel, New York, N.Y. (Eric Lee and Daniel Matza–Brown of counsel), for respondents.

ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from two orders of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), both dated December 5, 2019. The first order denied the plaintiff's motion for summary judgment on the issue of liability. The second order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the first order is affirmed; and it is further,

ORDERED that the second order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant New York City Department of Education, and substituting therefor a provision denying that branch of the motion; as so modified, the second order is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff commenced this action against the defendants, the City of New York and the New York City Department of Education (hereinafter the DOE), to recover damages for personal injuries that she allegedly sustained on February 4, 2014, at approximately 2:20 p.m., when she was struck by falling ice on the exterior grounds of P.S. 63 in Queens. The plaintiff was a teacher at the school, and when the accident occurred she was assisting students during dismissal time.

The plaintiff moved for summary judgment on the issue of liability, contending that the defendants created and had actual or constructive notice of the condition that caused her injuries. The defendants moved for summary judgment dismissing the complaint, contending that they neither created nor had notice of the alleged hazardous condition. The defendants also contended that the plaintiff did not know what had caused her injuries and that the City was not a proper party to this action. The Supreme Court denied the plaintiff's motion. In a separate order, the court granted the defendants' motion. The plaintiff appeals from both orders.

A landowner has a duty to maintain his or her premises in a reasonably safe manner (see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ; Jaklitsch v. Kelly, 176 A.D.3d 792, 110 N.Y.S.3d 438 ). "In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that the landowner affirmatively created the condition or had actual or constructive notice of its existence" ( Vantroba v. Zodiaco, 193 A.D.3d 1014, 1015, 142 N.Y.S.3d 821 [internal quotation marks omitted]; see Persaud v. S & K Green Groceries, Inc., 72 A.D.3d 778, 898 N.Y.S.2d 255 ). "A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" ( Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1033–1034, 83 N.Y.S.3d 74 ; see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 ).

Here, the plaintiff failed to establish, prima facie, that the defendants breached their duty to maintain their premises in a reasonably safe condition. Contrary to the plaintiff's contention, she failed to eliminate triable issues of fact as to whether the defendants had constructive notice of the alleged hazardous condition and whether they should have altered their dismissal routine (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Persaud v. S & K Green Groceries, Inc., 72 A.D.3d at 779, 898 N.Y.S.2d 255 ). The plaintiff also failed to establish that the defendants had actual notice of a recurring hazardous condition and thus could be charged with constructive notice of each specific recurrence. The evidence submitted by the plaintiff merely showed that the defendants had a general awareness that snow and ice may accumulate on the exposed surfaces of the school building and air conditioning units in the winter months, and did not show that the defendants were aware of snow or ice ever previously falling from those surfaces (see Mauge v. Barrow St. Ale House, 70 A.D.3d 1016, 1017, 895 N.Y.S.2d 499 ; Maldonado v. Novartis Pharms. Corp., 58 A.D.3d 813, 872 N.Y.S.2d 174 ). Since the plaintiff failed to meet her initial burden as the movant, the Supreme Court properly denied her motion for summary judgment on the issue of liability without regard to the sufficiency of the opposition papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324–325, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).

With respect to the defendants' motion, contrary to the plaintiff's contention, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the City since it was not a proper party to this action (see ...