This action seeks to recover monetary damages for personal injuries resulting from the plaintiff's slip and fall on black ice. Because plaintiff has been unable to rebut [*2]defendant's evidence that defendant did not cause or create the ice, nor did it have adequate notice of the condition, defendant's motion for summary judgment dismissing this action is granted.

Background

On February 11, 2012 at 8:15 a.m., plaintiff slipped and fell on a patch of black ice. The incident occurred on a public sidewalk abutting property owned by defendant.

In support of this motion, defendant introduced the testimony via deposition and affidavit of Mario Moran, its night supervisor of maintenance. Mr. Moran averred that at 10:oo p.m. on February 10, 2010, while a snowstorm was in progress, he and his crew began snow and ice removal, finishing at about 12:05 a.m. on February 11, 2010. At about 12:15 a.m. they salted the sidewalks abutting plaintiff's property. He continued to monitor the property throughout the night and at 5:30 a.m., they resalted the entire premises. At 7:30 a.m., he checked the pertinent area and found it completely clear of snow and ice.

Plaintiff stated that he never saw the ice before he fell. He estimated that it was one inch wide and three to four inches long.

The defendant presented the testimony of Thomas Downs, a meteorologist, one of whose specialties is applied climatological science. Mr. Downs, working from certified weather reports, stated that the snowfall occurred from late evening on February 9, 2010 through the day on February 10, 2010, culminating in 10 inches of snow on the ground in Central Park. Downs observed, that at Moran's last observation at 7:30 a.m. that the area in question was entirely clear at the time of plaintiff's accident at 8:15 a.m., there was much student traffic from the neighboring Montessori School ^[FN1] as well as parishioners of the defendant on their way to morning mass. In those 45 minutes between 7:30 a.m. and 8:15 a.m., anyone carrying a beverage could have dropped some of it on the sidewalk, and, given

the below freezing temperature at the time, the liquid could have quickly frozen and formed the ice on which plaintiff slipped.

The Parties' Contentions

Defendant claims it is absolutely protected by Administrative Code 16-123, which states that an abutting landlord has four hours after the end of the snowfall, excluding the hours 9:00 p.m. through 7:00 a.m. Therefore, argues defendant, it had until 11:00 a.m. to start removing snow and ice and couldn't, therefore, be liable for plaintiff's injuries. Moreover, through Mr. Moran, defendant has shown that the premises was kept free and clear of snow and ice for 45 minutes prior to the time of plaintiff's injuries. It certainly did nothing to cause or create the hazardous condition and never received any notice of the existence of the patch of ice. Significantly, no one else, including the plaintiff, detected the ice before his accident. All of the efforts of Moran, argues the defendant, succeeded in making the premises safer for those using the abutting sidewalk. [*3]

Plaintiff's expert, also using weather reports and Doppler Radar concluded that up and down freezing temperatures caused new ice to form during the melting and freezing process, with the most melting and freezing occurring at 3:31 a.m. He speculates that the ice that caused the accident was the result of freezing and re-freezing 4 ½ hours before the accident, which he surmises was missed by Moran and his crew. He contends that if the ice had been sufficiently and thoroughly treated, the ice involved would not have existed.

Discussion

Defendant's summary judgment motion must make a prima-facie showing of the absence of any material issue of fact, that would defeat summary judgment. If such a showing is made, then the plaintiff has the burden of setting forth any material issues of fact which would result in the denial of the motion. Conclusory allegations not backed up by evidence in the record will not defeat summary judgment (Alvarez v Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 [1986], see also, Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1950]).

While defendant is most likely correct that Admin Code 16-123 protected it from liability until 11:00 a.m., that is true as long as it did not engage in a cleanup, and the case law establishes that it would be liable if by doing so it created a more hazardous condition Matter of Rodriquez v Dumpson, 52 AD2d 299, 383 NYS2d 883 [1st Dept. 1976] illustrates this point. At the time that this determination was made, the Administrative Code did not make the landowner responsible for the condition of an abutting sidewalk, but once it did decide to clear the sidewalk, it became responsible if it created a more hazardous condition.

Clearly, defendant made out a prima facie case. Nothing in the way of negligence or in causing or creating a more hazardous condition can be discerned from Mr. Moran's and his crew's cleanup. They cleared the area in question of all hazardous conditions and then salted twice, and monitored the area all night and inspected up to 45 minutes before plaintiff

was injured. These constitute material facts showing prima facie that there was no negligence and no cause or creation of more dangerous conditions. They show that defendant did everything reasonably feasible to make the area safe.

What is plaintiff's response to this? His expert concludes that there must have been the creation of icy conditions as the temperature during the night changed from freezing to thawing. Without any direct evidence of this, this kind of speculation cannot stand up. An expert's testimony must be based on admissible evidence in the record. While there is direct evidence in the record to substantiate Moran's testimony of cleanup and the 7:30 inspection, there is no such observation by plaintiff's expert, but merely speculation on what must have happened. Such testimony by an expert is bereft of any successful rebuttal of defendant's prima facie showing (Bacent v Greenberg, 74 AD3d 500, 903 NYS2d 30 [1st Dept 2010]) [Plaintiff's expert's opinion not considered because it was not based on evidence in the record or the expert's personal knowledge.] See, Richter v State of New York, 321 AD2d 943, 819 NYS2d 173 [3rd Dept 2006] where the Court dismissed the Complaint by holding that the defendant did not have notice actual or constructive of the icy conditions and nothing in the record established constructive notice. [*4]

In order to defeat a motion for summary judgment, plaintiff was required to present a material issue of evidentiary fact comprised of more than mere speculation or conjecture. Plaintiff fails to establish that evidence. An expert cannot assume material facts that are not

supported by the evidence to sustain her conclusions ... The factual issues asserted must be genuine and not merely feigned to avoid summary judgment (Cillo v Resjefal Corporation, 16 AD3d 339, 340 - 341, 792 NYS2d 428, 429 [1st Dept 2005]).

Based on the foregoing, it is

ORDERED that this motion for summary judgment is granted, and the clerk of the Court is directed to enter judgment dismissing this action.

Dated: September 20, 2013Enter:

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Louis B. York, J.S.C.