The following papers numbered 1 to 17 were read on this motion by defendant, 58-42 MAIN STREET CORP, for an order, pursuant to CPLR 3212, granting summary judgment in favor of said defendant and dismissing the plaintiff's complaint on the ground that the defendant did not create or have actual or constructive notice of a snow and ice condition:

Papers

Numbered

Notice of Motion-Affidavits-Exhibits...................1 - 8

Affirmation in Opposition-Memo of Law-Exhibits.........9 - 13

Reply Affirmation.....................................14 - 17

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This is an action for damages for personal injuries sustained by plaintiff, Gerald Rinkle, on February 19, 2010, at approximately 12:00 p.m. when he allegedly slipped and fell on snow and ice in a parking area located at 58-42 Main Street, Queens, New York, owned by the defendant 58-42 Main Street Corp. As a result of the fall, the plaintiff sustained, inter alia, [*2]nasal fractures, facial contusions, edema, concussion, post- concussion syndrome and left knee contusion.

The plaintiff commenced an action for negligence against 58-42 Main Street Corp. by filing a summons and verified complaint on March 25, 2011. Issue was joined by the service of defendant's verified answer on or about May 10, 2011. The gravamen of the complaint, as set forth in plaintiff's bill of particulars, is that the defendant was negligent in the maintenance of the premises in causing the exterior stairs and walkway in front of the premises to remain in a dangerous, unsafe and slippery condition covered with snow and ice, in failing to warn, in failing to inspect, in knowingly permitting said condition to remain and in failing to provide plaintiff with a safe ingress and egress upon the exterior stairs and walkway. Plaintiff claims that the defendant had actual and constructive notice of the accumulation of snow and ice in the parking area in front of the premises in that the condition existed for such a period of time that defendants, in the exercise of due care, should have recognized and remedied it.

Defendant 58-42 Main Street Corp., now moves for an order granting summary judgment and dismissing the plaintiff's complaint on the ground that the defendant bears no liability to the plaintiff for negligence due to an allegedly dangerous condition on the entranceway to the office. Defendant contends that the plaintiff has failed to demonstrate defendant had actual or constructive notice of the alleged condition.

In support of the motion, defendant's counsel, Jozef K. Goscilo, Esq., submits his own affirmation, dated December 13, 2012; a copy of the pleadings; a copy of the plaintiff's verified Bill of Particulars; a copy of the transcript of the examinations before trial of plaintiff Gerald Rinkle and Shirley Rinkle; a copy of the transcript of the examination before trial of Arlene Farrell, the office manager at Tarasuk & Farrell Urological P.C., and an affidavit from Ms. Farrell dated December 12, 2012.

Plaintiff, Gerald Rinkle, age 83, testified at an examination before trial on February 10, 2012 that at approximately 1:30 p.m. on February 19, 2010 he and his wife drove to a doctor's appointment with Dr. Tarasuk, a urologist. The office was located at 58-42 Main Street in Flushing. Mr. Rinkle stated that the weather was nice but there were remnants of snow on the ground. There is an exterior staircase leading from the parking lot to the entrance of the office. His wife started going up the stairs and he was behind her approaching the staircase approximately two feet away. As she began to ascend the [*3]staircase he reached for the handrail, slipped on the concrete and hit his head on the railing attached to the staircase. He testified that he never made it to the staircase because he slipped in the paved parking area immediately in front of the first step. He said that the area had moisture on the ground in the form of "melting precipitation," a mixture of snow and ice. He stated that he was able to observe that the area had been previously shoveled so that the moisture had negligible depth. He did not see any snow or ice melt on the ground. As he fell, his forehead, left eye, and nose came into contact with the handrail. When he landed, part of his body was on the stairs and part in front of the stairs. He was bleeding from his nose and laid on the ground for five minutes until two staff members from the doctor's office came out to administer first aid. Plaintiff left the scene in an ambulance and was transported to the emergency room at New York Hospital of Queens. He stated that to his knowledge no one complained about icy or snow covered conditions in the area where he fell, and he himself never complained about snowy or icy conditions in the area at any time prior to the accident.

The deposition of Mrs. Shirley Rinkle, age 74, also took place on February 10, 2012. She testified that on the date of the accident it was cold and there was snow and ice on the ground. At the time of the accident she had reached the first step. Her husband was behind her and she observed him fall and hit his head on the railing. When asked if she saw ice or snow on the specific spot where her husband indicated that he fell she said, "I don't think so, no. I wasn't looking down."

The defendant also submits a copy of the deposition transcript of Arlene Farrell, age 62, a registered nurse employed at Tarasuk and Farrell Urological Associates as the office manager. She testified that Drs. Farrell and Tarasuk own the building at 58-42 Main Street. She stated that on the date of the accident she was in the office when an individual came in and stated that a patient had fallen outside. She immediately went outside and observed Mr. Rinkle sitting on the bottom step. She saw that he was bleeding from his nose and he had a bruise on his forehead. She asked him what happened and he said he didn't know. Ms. Farrell also asked his wife how he fell and she also said she didn't know. Ms. Farrell instructed someone from the office to call an ambulance. She stated that it may have snowed within 48 hours of the accident. She states that snow removal is contracted out to one Anthony Rodriguez who comes to the office very early before the office opens to clear the entire area including the steps and the driveway. She stated that after Mr. Rinkle slipped she observed that there was no ice or snow or anything on the [*4]ground or on the landing. She also did not see any rain or sleet accumulations or water or any muddy conditions. She stated that she checked the location where he fell and did not see any accumulation of materials and, in fact, the area where plaintiff slipped and the landing were dry. She stated that since the time of the last storm Mr. Rodriguez had cleared the area of ice and snow but she did not know exactly when. She stated that Anthony uses a shovel to clear the steps and they always have bags of ice melt.

Ms. Farrell also submits an affidavit in which she states that her duties include ensuring that the parking area approach and exterior stairway to the building are clear of snow and ice or foreign substances that could present a dangerous condition to people leaving and entering the practice. She states that a review of her office records for the date of the accident indicates that prior to Mr. Rinkle's arrival for his appointment, one of the two doctors, various members of the staff and approximately 40 patients traversed the same approach to the stairs and entered through the front door without any incident. She states that none of the patients or staff mentioned the existence of any snow or ice on the approach to the stairs or anywhere else in the parking area. She states that when she went out to assist Mr. Rinkle, she observed that all surfaces were dry. She states that she is not aware of any slip and fall accidents on snow or ice that occurred prior to Mr. Rinkle's fall, nor had there been any complaints by anyone of slippery or other hazardous conditions in the parking lot prior to Mr. Rinkle's accident.

Defendant contends that there is no evidence in the record that there were any prior complaints with regard to snow ice or slippery conditions in the area where Mr. Rinkle fell prior to the accident. Defendant argues that the testimony of Gerald Rinkle and his wife fails to set forth prima facie evidence of notice either actual or constructive of a dangerous condition in the parking area approach to the stairs which leads to the doctor's office. In addition, the affidavit of Arlene Farrell affirmatively states that prior to the accident, over 40 people had traversed the same area and no complaints were ever made to the anyone in the office with regard to any hazardous condition in the parking area. Accordingly, counsel requests that summary judgment be granted to the defendant in that the defendant neither created the snow, ice, or melting precipitation complained of, nor did it have actual or constructive notice of same.

In opposition, plaintiff submits the report of his [*5]meteorological expert, Mr. George Wright, in which he claims that the dangerous condition which caused plaintiff's accident was present for at least 34 hours prior to the accident. Thus, plaintiff asserts that there are questions of fact regarding whether the defendant caused and created a dangerous condition and whether the defendant had constructive notice of the subject condition.

Mr. Wright's affidavit states that he reviewed the climatological data for LaGuardia airport three miles from the location of the accident for the week prior to the accident. He states that his review of the records indicates that between 10 and 10.5 inches of snow fell at the subject location between February 9 and February 11, 2010. He states that there was no precipitation from February 11th through February 14, 2010. There was a trace amount of snow that fell on February 15 and then there was a 5 inch snowfall on February 16, 2010, three days prior to the accident. There was no snowfall on the 17th, 18th and 19th, the date of the accident. The last snowfall prior to the accident was on February 16, 2010. He states that at noon on February 19, 2010, at the subject location, the temperature was 42 degrees. The expert states that based upon the prior snowfalls, on the date of the accident there would have been 4 inches of snow and ice present on exposed undisturbed and untreated ground at and in the immediate vicinity of 58-42 Main Street. He states that there was no measurable snowfall or any other type of precipitation from 7:00 p.m. on February 16, 2010 through the time of the accident or for approximately 65 hours prior to this time. He states that in his opinion based upon a review of the records and deposition testimony of the parties:

"The presence of a mixture of snow and ice and melted water from snow or ice or rainwater on the exterior stairway at 58-42 Main Street at approximately noon on February 19, 2010 was entirely formed by the snow that fell from February 9 - 11, 2010 and February 15-16, 2010 and the melting an re-freezing cycles that occurred during February 11-14 2010 and February 17, 2010. He stated that the temperature remained above freezing at the time of the plaintiff's accident resulting in the partial melting of snow and ice present on the exterior stairway." He concludes therefore, that the snow and ice on which the plaintiff slipped and fell formed prior to 1:30 a.m. on February 18, 2010 and was present for no less than 34 hours prior to plaintiff's accident and was, therefore, a longstanding condition.

Plaintiff argues that as the Mr. Rinkle testified that there were remnants of snow and ice on the ground that appeared to have been shoveled, that there is a question of fact as to whether [*6]defendant's agent inadequately removed snow and ice from the accident location and in so doing created a dangerous condition which caused the plaintiff's accident. Counsel also states that there was no information as to when the area was last inspected or cleaned and although no complaints were made by others who had traversed the area, he contends that there is no proof in the record as to the last time prior to the accident that anyone actually shoveled the area. Further, counsel argues that its expert stated that in his opinion, based upon melting and refreezing of snow that had fallen prior to the accident, the condition would have been in existence for at least 34 hours prior to the accident.



Upon review and consideration of the defendant's motion, the plaintiff's affirmation in opposition and the defendant's reply thereto, this court finds that the evidence submitted by the defendant was not sufficient to demonstrate, prima facie, that the defendant did not create the condition nor to show that it did not have constructive notice of the slippery condition on the ground prior to the plaintiff's accident.

A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive notice of it (see Flores v BAJ Holding Corp., 94 AD3d 945 [2d Dept. 2012]; Cantwell v Fox Hill Community Assn., Inc., 87 AD3d 1106 [2d Dept 2011]). To constitute constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). "To meet their initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Birnbaum v New York Racing Association, Inc., 57 AD3d 598 [2d Dept. 2008]; also see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2d Dept. 2011]; Pryzywalny v New York City Tr. Auth., 69 AD3d 598 [2d Dept. 2010]; Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept. 2009]; Braudy v Best Buy Co., Inc., 63 AD3d 1092 [2d Dept. 2008]).

Here, this court finds that the defendant failed to proffer sufficient evidence as to when the entranceway to the office where the plaintiff fell had last been inspected or shoveled prior to the injured plaintiff's fall. Although the office manager and who submitted an affidavit stated that 40 individuals [*7]all passed by the area on their way into the office in the morning prior to the plaintiff's accident, the office manager did not state that she or anyone else actually made an inspection of the premises for purposes of checking for snow or ice prior to the plaintiff's accident. Walking past or through an area does not serve the same purpose as an inspection, the purpose of which is to look for dangerous conditions(see Baratta v Eden Roc NY, LLC, 95 AD2d 802 [2d Dept. 2012][the defendant offered no evidence as to when the mat was last inspected prior to the accident as opposed to the last time its superintendent walked over it]). As the deposition testimony and affidavit of the defendant's office manager provided no evidence as to when the entranceway was actually last inspected before the plaintiff's fall, the testimony was insufficient to satisfy the defendant's initial burden on the issue of lack of constructive notice (see Feola v City of New York, 102 AD3d 827 [2d Dept. 2013]; Klerman v Fine Fare Supermarket, 96 AD3d 907[2d Dept. 2012]; Levine v Amverserve Assn., Inc., 92 AD3d 728 [2d Dept. 2012]; Spector v Cushman & Wakefield, Inc., 87 AD3d 422 [1st Dept 2011]; Mignogna v 7-Eleven, Inc., 76 AD3d 1054 [2d Dept. 2010]; Baines v G & D Ventures, Inc., 64 AD3d 528 [2d Dept. 2009]).

Thus, the defendant failed to meet its burden of demonstrating that the allegedly dangerous condition existed for an insufficient length of time for them to have discovered and remedied it (see Baratta v Eden Roc NY, LLC, 95 AD3d 802 [2d Dept. 2012]; Levine v Amverserve Assn., Inc., 92 AD3d 728 [2d Dept. 2012]; Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept. 2009]; Taylor v Rochdale Vil., Inc., 60 AD3d 930 [2009]). In addition, the defendants failed to make a prima facie showing that their snow removal efforts at the building did not create or exacerbate the alleged melting ice and snow condition which allegedly caused the plaintiff to fall.

As defendant failed to establish its entitlement to judgment as a matter of law, it is not necessary to consider the sufficiency of the opposition papers submitted by the plaintiff (see Giraldo v Twins Ambulette Serv., Inc., 96 AD3d 903 [2d Dept. 2012]; King v 230 Park Owners Corp., 95 AD3d 1079[2d Dept. 2012]; Hill v Fence Man, Inc., 78 AD3d 1002 [2d Dept. 2010]).

Accordingly, for all of the above stated reasons, it is hereby

ORDERED, that the defendant's motion for summary judgment is denied. [*8]

Dated: June 4, 2013

Long Island City, NY

______________________________ROBERT J. MCDONALD

J.S.C.