The defendant, The City of New York, The New York City Health and Hospitals

Corporation s/h/a The New York City Health and Hospitals Corporation and Coney Island Hospital move this Court seeking an order:

1) pursuant to CPLR §3211(a)(7) dismissing the Complaint and all Cross-Claims for failure to state a cause of action, or, in the alternative,

2) pursuant to CPLR §3212 granting summary judgment as to said defendants, dismissing the Complaint as to them and all Cross-Claims; and

3) for such other and further relief as to this Court seems just and proper. [*2]

The defendants, Samuel J. Lefrak, Portland Leasing Corp. and Forest Hills Park Development Corp. also move seeking an order:

1) pursuant to CPLR §3212 granting said defendants summary judgment dismissing the Complaint as to them and all Cross-Claims; or in the alternative,

2) dismissing the plaintiff's claims as against the defendants, Samuel J. Lefrak and Forest Hills Park Development Corp. as improper parties; and

3) such other and further relief as to this Court seems just and proper.

Now, upon the foregoing papers and upon hearing oral argument on March 24, 2005 and due deliberation had thereon the motions are Granted only to the following extent:

1) The defendant The City of New York is granted summary judgment and the Complaint and all Cross-Claims as against it are Dismissed;

2) The plaintiff's claims as against the defendants Samuel J. Lefrak and Forest Hills Park Development Corp. are Dismissed as they are improper parties.

The action is severed accordingly.

The motions are in all other respects Denied.

The claim as against the defendant The City of New York arises out of alleged personal injuries sustained by the plaintiff as the result of a slip and fall on January 11, 1996 when the plaintiff alleges that she slipped in snow and ice on the public sidewalk in front of 2411 E. 3rd Street, Brooklyn, New York. This incident occurred less than 72 hours after a major snowstorm, referred to as the "Blizzard of 1996", which began on January 7, 1996 and ended around

January 9, 1996 and by plaintiff's concession approximately 21 inches (and as much as 23 inches) of snow resulted from the storm. It is also undisputed that the average temperatures from January 9, 1996 through January 11, 1996 remained below freezing leading to the formation of icy conditions.

The law is clear that a municipality is not liable for a fall on snow and ice unless a reasonable time has elapsed between the end of the storm and the occurrence of the accident. Booth v. The City of New York, 272 AD2d 357; Walker v. The City of New York, 251 AD2d 653; Robles v. The City of New York, 255 AD2d 305; Valentine v. The City of New York, 86 AD2d 381; aff'd, 57 NY2d 932. The reasonableness of the time within which the municipality must fulfill its duty to clear the sidewalk is measured from the time of the cessation of the precipitation. Arcuri v. Vitolo, 196 AD2d 519. After exceptionally severe snowstorms the courts have permitted the City of New York extended periods of time in which to clear the sidewalks of snow and ice. Martinez v. The City of New York, 238 AD2d 286; Sing Ping Cheung v. The City of New York, 234 AD2d 91. In the case at bar, the delay of somewhere between 48 and 72 hours after cessation of this most severe snowstorm was reasonable. Nor is there any evidence that the City ever commenced cleaning in this particular case so that it might have in some way created the condition. In fact, all the deposition testimony is to the contrary and that the employees of the abutting private landowner were continually cleaning the area. The New York Court of Appeals has recently held that the City is permitted to wait a reasonable period of time before beginning snow removal on the sidewalk to see if the abutting landowner removes the snow. Garricks v. The City of New York, 1 NY3d 22.

As concerns the motion of Samuel J. Lefrak and Forest Hills Park Development for dismissal as improper parties, the plaintiff concedes by her silence in opposition that Forest Hills Park is an improper defendant. As to the individual defendant, Samuel J. Lefrak, he has produced the deed for the premises demonstrating that it is owned by Samuel J. Lefrak, Ethel Lefrak and Emanuel Schaeffer, as Trustees under Indenture of Trust dated March 25, 1963 D/B/A Portland Leasing Company. The plaintiff argues that Samuel Lefrak is a partner of an owner and therefore would bear individual liability. However, Portland Leasing Company is the record owner of the premises. A corporate entity, such as this, will be pierced only when necessary to prevent fraud or achieve equity or to prevent illegality. See, Walkorszky v. Carlton, 18 NY2d 414. There is no such evidence before the Court. Moreover, plaintiff has failed to sue the Trust. [*3]

With respect to the remaining branches of the motions they must be Denied.

Summary judgment is a drastic remedy and should not be granted when there is any doubt as to the existence of a material and triable issue of fact. Henderson v. City of New York, 178 AD2d 129. Coley v. Michelin Tire Corp., 99AD2d 795. The function of the court on a motion for summary judgment is limited to issue finding not issue determination. Dauman Displays, Inc. v. Masturzo, 168 AD2d 204; City University of New York v. Finalco, 93 AD2d 792; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395. It should not be granted when the existence of a triable issue is even arguable. Barrett v. Jacobs, 255 NY 520; Salino v. IP'T Trucking, Inc., 203 AD2d 352; Museums at Stoney Brooks v. Village of Patchogue Fire Dept., 146 AD2d 572.

It is also true that on a motion for summary judgment the proof must be read in the light most favorable to the party opposing the motion. Negi v. Stop and Shop, 65 NY2d 625; Rodriguez v. Parkchester So. Condo, 178 AD2d 231; Huth v. Allied Maintenance Corp., 143 AD2d 634.

In the case at bar, when viewed in such light questions of fact exist as to each defendant so as to preclude summary judgment.

As concerns the defendant The New York City Health and Hospitals Corporation s/h/a The New York City Health and Hospitals Corporation and Coney Island Hospital, questions of fact exist, concerning, but not limited to whether Dr. Dharapak, his assistant, and the hospital staff departed from good and accepted medical practice in failing to diagnose plaintiff Janet Friedlander with osteoporosis before, during and after her first surgery on January 12, 1996; in improperly performing a surgical open reduction and internal fixation procedure on her right hip by improperly inserting a screw into the femoral head such that the screw was not properly fastened or secured and was caused to back out, thus necessitating a second surgery; by Dr. Dharapak and his staff failing to appreciate the patient's signs and symptoms of pain during the course of her hospital stay from January 11, 1996 to January 31, 1996; by failing to take appropriate or a sufficient number of x-rays and/or other diagnostic tests on Ms. Friedlander's right hip prior to discharging her to physical therapy on January 31, 1996; by Dr. Bartolos and her staff failing to appreciate the patient's signs and symptoms of pain during the course of her physical therapy from February 1, 1996 to February 28, 1996; and by Dr. Dharapak failing to consider performing a total hip replacement at the outset in light of Ms. Friedlander's condition of osteoporosis, which he did not discover until her second surgery on March 12, 1996, rather than engaging in a failed attempt to treat Ms. Friedlander's hip fracture with open reduction internal fixation surgery on January 12, 1996.

When, as here, the plaintiff in a medical malpractice action submits the affirmation of a medical expert in opposition to a motion for summary judgment by a defendant who sets forth specific departures based upon a review of the relevant medical records and deposition testimony and states that such departures were a proximate cause of the alleged injuries, summary judgment is inappropriate. Cervkvenik v. County of Westchester, 200 AD2d 703; Banks v. Barboukis, 182 AD2d 603. In addition, the submission of conflicting medical opinions by the parties necessarily present an issue of fact requiring denial of a summary judgment motion. Viti v. Franklin General Hospital, 190 AD2d 790.

The affirmation of the plaintiff's medical expert sets forth his qualifications. He states after having reviewed the relevant hospital medical records and therapy records as well as the depositions of the plaintiff, Dr. Eve Bartolo, Dr. Chai Dharapak and the affirmation of the defendants expert, Dr. Herb Sherry were negligent and their respective negligence affected the plaintiff's condition. Menzel v. Plotnick, 202 AD2d 538.

On a motion for summary judgment issues of credibility cannot be determined unless untruths are clearly apparent. Chase v. Skoy, 146 AD2d 563, 564; French v. Cliff's Place, Ltd., 125 AD2d 293. Nor is there any requirement that plaintiff's expert have the same specialty as the defendant doctor in order to opine about the applicable standard of care. Robertson v. Greenstein, 308 AD2d 381; Benfer v. Sachs, 3 AD3d 781.

With respect to the defendant Portland Leasing Corp. questions of fact exist, concerning, [*4]but not limited to, whether it created the condition and had notice of same in that it concedes that it cleaned the area every few hours and had it inspected by a manager on numerous occasions during the interval between the cessation of the storm and the incident in question.

This constitutes the Decision and Order of this Court.

E N T E R,

J.S.C.