Paulk v. Viera

2020 NY Slip Op 34922(U)

TAMESHA PAULK, Plaintiff, v. GLADYS VIERA and SANTOS VIERA, Defendants.

Index No. EF010640-2018

Supreme Court, Orange County

February 7, 2020

Unpublished Opinion

Motion Date: January 30, 2020

Catherine M. Bartlett Judge

The following papers numbered 1 to 6 were read on the Defendants' motion for summary judgment:

Notice of Motion - Affirmation / Exhibits .......................................1-2

Affirmation in Opposition - Affidavit - Expert Affidavit / Exhibits ....................3-5

Reply Affirmation 6

Upon the foregoing papers it is ORDERED that the motion is disposed of as follows:

Plaintiff Tamesha Paulk commenced this action against defendants Gladys and Santos Viera to recover for personal injuries arising out of a slip and fall on "black ice" that occurred on February 5, 2018 at 7:30 a.m. in the Defendants' home in Beacon, New York. Defendants move for summary judgment on the ground that they lacked notice of this condition. Plaintiff contends that Defendants failed to established prima facie entitlement to judgment as a matter of law, and in any event, that Plaintiff has demonstrated the existence of a triable issue of fact whether Defendants created the condition in that it was the product of melting and refreezing snow piled adjacent to the driveway.

A. Defendants' Evidence

Plaintiff was employed as a personal care assistant for defendant Gladys Viera (who was suffering from dementia) commencing in October of 2017. She worked seven days a week, from 7:00 a.m. to 1:00 p.m.

On the morning of February 5, 2018, the weather was cold, but above freezing, and there was no precipitation. Plaintiff was running late for work because she had had to wait for the babysitter. Her mother drove her to the Viera home and dropped her off in the driveway at about 7:30 a.m. There was snow on the grass at the side of the driveway, but Plaintiff observed no snow or ice on the driveway itself. Indeed, Plaintiff could not recall ever having observed snowy or icy conditions in the driveway at the Viera's. Plaintiff exited her mother's car, took one step back, slipped and fell.

Plaintiff testified:

Q Describe as best you remember it the, what you saw that you understood caused you to fall.

A I seen it was like dried up ice but it looked like it was, like, melted but then it started to dry - not dry, freeze, ice, like I felt it under me, when I was getting up I felt it icy under my hands, to see what I had fell on.

Q Were you able to see the ice when you were standing up or did you have to go to touch it to realize it was there?

A I had to go touch it.

Q Did you observe how large the patch of ice was on the driveway?

A No. Q Did you see any ice on the driveway other than the spot where you fell?

A No, I wasn't looking, no. I was just trying to walk.

Q I'm sorry?

A Walking careful.

Q Between where you fell and when you went into the house was there any additional slippery condition?

A Not that I remember.

Bethzaida Catalano is the Defendants' daughter. Both of her parents are disabled and incapable of testifying. From December 2017 to February 2018, Ms. Catalano was at her parents' home three to four days a week to assist them. She testified:

Q When snow and ice is removed from your parents' driveway, would snow accumulate on the grassy parts adjacent to your parents' driveway?

A Yes.

Q When the temperature would rise above 30 degrees from time to time, would that snow melt and water run back into the driveway, which would then refreeze at night when the temperature would drop below 37 degrees?

A Are you asking if that happens?

Q I'm asking if you noticed that happening at the house at any point in time?

A No.

Marilyn Ricottilli, another of the Defendants' daughters, resided up the block from her parents, was their primary caretaker and was at their home nearly every day. She testified:

Q ...During the 2017 to 2018 winter season did you ever specifically ask somebody to check the driveway for ice?

A I would do it I wouldn't have to go and ask anybody. Like you don't understand. I was there almost all the time, especially if the weather was bad....

Q Was there a system in place for inspecting for melt and refreeze or was it just if we saw it we took care of it?

A If we saw it we took care of it, be we saw it and took care of it all the time. My husband and I would take care of my father-in-law's, my house, my father's. My cousin is right there. My aunt lives next door. We take care of the driveways and the sidewalks.

***

Q ...Did anybody ever inspect that area of the driveway next to the grassy area for melt and refreeze from the snow that accumulated in that grassy area that would melt when the temperature rose above 32 degrees and then freeze when the temperature dropped below 32 degrees? Did anybody inspect for that?

A I'm going to answer your question. If the snow - the only place that used to freeze at my father's house would be over here in the road. Usually over here is where there's a puddle. Let me tell you, as a kid we used to go ice skating right there. In the driveway, no....

B. Plaintiffs Evidence

In opposition to Defendants' motion, Plaintiff proffered an affidavit contradicting her deposition testimony.

Plaintiff had testified:

Q Were you in a hurry when you were getting out of your mother's vehicle?

A Yes.

Q And you were in a hurry because you were half an hour late for work or something else?

A Because I was late for work.

Her affidavit states to the contrary: "While I was late for work that morning, I had called my employer to advise that I would be late, and was not rushing as I exited my mother's vehicle."

As noted hereinabove, Plaintiff had also testified that she never saw ice in Defendants' driveway and had to go touch the ice she purportedly slipped on before she even realized it was there. Her affidavit states to the contrary: "I opened the door and placed both feet on the driveway. I saw what appeared to be wet pavement or ice in my direct path to the house..." Plaintiff explains that her affidavit is consistent with prior unsworn statements, but those statements too are contradictory. In what appears to be an employee accident report she stated "I seen the ground was wet," but in a patient medical history she stated "I seen some ice." In what appears to be an insurance statement, the critical word was left out and inserted illegibly: "I observed there was [illegible insertion] on the patient's driveway."

Plaintiff also proffered an expert meteorological affidavit and report. The expert purports to have gleaned meteorological data from a number of cited sources, and to have summarized the data in his report, but none of the meteorological records are annexed to his submission. He asserts inter alia that 2.5 inches of snow/sleet fell on February 2, 2018; that .70 inches of rain and .1 inch of snow/sleet"+ ice" fell on February 4; that melting and refreezing processes occurred on February 1, 2, 3, 4 and 5; that the last time new ice formed prior to the accident was at about 11:50 p.m. on February 4; and that the air temperature rose above freezing from about 2:33 a.m. through 8:09 a.m. on February 5. The expert opines that "[a]t 7:30 a.m. on February 5, 2018, the sky was mostly cloudy, the air temperature was 34 degrees Fahrenheit, and approximately 1.5" of pre-existing snow/ice, and areas of old melt refreeze ice, were present on exposed, untreated and undisturbed surfaces."

C. Legal Analysis

1. The Standard Governing Summary Judgment Motions

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985). "[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings." Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214 (2d Dept. 2010) (citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 325, and Winegrad v. New York University Medical Center, supra). The movant's failure to meet this burden of proof "requires denial of the motion, regardless of the sufficiency of the opposing papers." Winegrad v. New York University Medical Center, supra. If, on the other hand, the movant establishes prima facie entitlement to summary judgment, the opponent, to defeat the motion, "must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim." Zuckerman v. City of New York, 49N.Y.2d 557, 562 (1980).

2. Defendants' Initial Burden Of Proof

"A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition that caused the accident or had actual or constructive notice of its existence." Lauture v. Board of Managers, 172 A.D.3d 1351, 1352 (2d Dept. 2019); Bader v. River Edge at Hastings Owners Corp., 159 A.D.3d 780 (2d Dept.), Iv. denied 31 N.Y.3d 913 (2018); Haberman v. Meyer, 120 A.D.3d 1301 (2d Dept. 2014); Cuillo v. Fairfield Property Services, L.P., 112 A.D.3d 777, 778 (2d Dept. 2013).

Thus, a defendant moving for summary judgment in a slip-and-fall case establishes prima facie entitlement to judgment as a matter of law by demonstrating that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. See e.g., Lauture v. Board of Managers, supra; Haberman v. Meyer, supra; Ferro v. 43 Bronx River Road, 139 A.D.3d 897 ...