DECISION/ORDER Defendants Melrose Site D-1 Houses, Inc. and Melrose Site D-1 Realty Associates, L.P., (Melrose) move for summary judgment dismissing the complaint. This is an action to recover for personal injuries caused by an alleged slip and fall on ice at the defendant’s premises located at 255 E. 149th Street, Bronx, New York. On March 4, 2015 between 5A.M. and 6A.M the plaintiff while walking in a courtyard at the premises allegedly fell on a patch of ice causing her to sustain a bimalleloar fracture as well as a tibia and fibula fracture.Melrose moves for summary judgment arguing (1) that they did not have actual or constructive notice of the icy condition which caused the fall; (2) that the fall occurred while a storm was in progress and (3) that no duty was breached to the plaintiff since they were not obligated to commence any snow removal prior to the accident since the earliest they would be required to commence snow removal was at 7A.M. and the accident occurred between 5 and 6 A.M. In opposition the plaintiff argues that issues of fact exist with respect to whether the alleged icy condition which allegedly caused the plaintiff to fall was caused and created by the defendants’ negligence.The defendants have submitted evidence that at the time of the plaintiff’s accident, the temperature was above freezing and that it was raining. They contend that there was substantial snow still on the ground from various storms that occurred in the days and weeks before the incident. They claim that because it was raining at the time of the accident it constituted a storm in progress relieving them of the obligation to remove snow until after the storm ended (see, Pippo v. City of New York 43 A.D.3d 303). They further contend that the plaintiff testified that what she actually fell on was best described as slush. Because they did not create nor had actual or constructive notice of the dangerous condition, Melrose argues that it is entitled to an award of summary judgment.In opposition the plaintiff argues that issues of fact exist with respect to whether the alleged icy condition was caused and created by the defendants’ employees improper shoveling of snow from prior storms. According to the plaintiff the defendants employees improperly shoveled snow and left it piled in an area adjacent to where the plaintiff was walking on the date of the accident. The improperly shoveled snow created an icy hazard of ice and slush that was approximately 3 inches deep according to the plaintiff. In support of this contention the plaintiff submits affidavits from two non party witnesses who claim to have seen the alleged dangerous condition prior to the accident. Melrose would have the court disregard these affidavits as these individuals did not witness the accident and are submitted only to create a new theory not previously set forth by the plaintiff in her deposition.Melrose relies upon the Court of Appeals holding in Simmons v. Metropolitan Life Insurance Co. (84 N.Y.2d) which affirmed a dismissal of a case in which the plaintiff who was injured as the result of a fall on an icy patch failed to offer evidence of the length of time the patch existed or as to the patch’s origin. The court held that any finding of constructive notice would be purely speculative. Melrose argues that based upon the climatological data coupled with the plaintiff’s inability to properly establish when the icy condition formed any claim as to Melrose’s actual or constructive notice of the condition would be purely speculative (see Saavedra v. City of New York 137 A.D.3d 421).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 which caused the accident or had actual or constructive notice thereof (Castillo v. Silvercrest 134 A.D.3d 977). A property owner seeking summary judgment with respect to actual or constructive notice of an icy condition must proffer an affidavit or testimony based on personal knowledge as to when its employees last inspected the sidewalk or the sidewalks condition before the accident (Simpson v. City of New York 126 A.D.3d 640; Spector v. Cushman & Wakefield 87 A.D.2d 422). While a property owner may not be held liable for an accident which occurred during a snow storm, once a property owner elects to engage in snow removal activities the owner must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard caused by the storm (Talamas v. Metropolitan Transportation Authority 120 A.D.3d 1333; Xie v. Yong 111 A.D.3d 617; Prenderville v. International Service Systems Inc. 10 A.D.3d 334).The plaintiff argues that issues of fact exist in this action which precludes an award of summary judgment. Specifically the plaintiff contends that an issue of fact exists as to whether the defendants caused or created a hazardous condition by improperly piling snow from prior storms, causing an obstruction restricting melting snow from reaching the sewer. The plaintiff’s allegation is that the obstruction caused an overabundant accumulation of snow which then turned to slush and ice eventually leading to the plaintiff’s accident.The courts function on a motion for summary judgment is issue finding and not issue determination (Sillman v. Twentieth Century Fox Film Corp. 3 N.Y.2d 395). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable fact (Rotuba Extruders v. Ceppos 46 N.Y.2d 223).The motion for summary judgment is denied. Issues of fact exist with respect to whether Melrose had actual or constructive notice of the icy condition which caused the fall and whether the defendants negligently caused the condition by improperly piling snow in the area where the incident occurred. The court rejects the defendants argument that the plaintiff’s claim as to the cause of the condition is purely speculative. The affidavits from the two non party witnesses both indicate that snow was piled in an area where it caused an obstruction which restricted the melting snow from reaching the sewer. The affidavit from non party witness Murtland Wills indicates that he worked at the premises and noticed the alleged snow and ice condition complained of days before the accident. He along with a second witness aver that there was approximately 3 to 4 inches of ice in the area where the plaintiff fell. In contrast the affidavit submitted in support of the motion by defendant from Miriam Valette, an employee from the company that managed the premises, is devoid of any testimony relating to when the sidewalk or area in question was last inspected prior to the plaintiff’s fall. Indeed, the witness had no knowledge as to snow removal at the location that occurred prior to the date of plaintiff’s accident (Def Ex. G p.15 1.10-13). The issue of whether the defendant had actual or constructive notice of the alleged condition or whether it caused and created the alleged condition are issues to be determined by the trier of fact.Accordingly the defendants motion for summary judgment dismissing the complaint is denied.This shall constitute the decision and order of the court.Dated: March 14, 2019
