Baptiste v New York City Tr. Auth. 2024 NY Slip Op 32401(U) July 12, 2024 Supreme Court, New York County Docket Number: Index No. 151283/2019 Judge: Denise M. Dominguez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. "'' .----- =-+4Ef,' T__,,...m; .+ .- {Pf --- l C""" INDEX NO. 151283/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/12/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ PART 35 Justice ---------------------------------------------------------------------------------X INDEX NO. 151283/2019 JAMALCO BAPTISTE MOTION SEQ. NO. ------=-00-=--=3'------- Plaintiff
-v- DECISION AND ORDER ON NEW YORK CITY TRANSIT AUTIIORITY, METROPOLITAN TRANSPORTATION AlJTIIORITY MOTION
Defendants ---------------------------------------------------------------------------------X
The following e-filed doc um cnts, listed by NY SCEF document number (Motion 003) 86, 87, 88, 89, 90, 91 , 92, 93, 94, 95
were read on this motion to/for --- REARGCMENT/RECONSIDERATION
for the reasons that follow, Plaintiffs motion to reargue this Court's decision that granted
summary judgment to Defendants, New York City Transit Authority and \ttctropolitan
Transportation Authority (Transit) is denied.
In this slip and fall personal injury matter, a summary judgment motion in favor of Transit
\..,as granted on '.\Jovember 20, 2023. Plaintiff now timely moves for leave to reargue and upon
granting leave argues that Transit's motion should have been denied as Transit did not properly
establish the snow in progress doctrine. Plaintiff specifically alleges that Transit did not submit a
certified weather report, did not establish when the area was last cleaned or inspected, and that
Transit's own witness did not corroborate the weather conditions.
Pursuant to CPLR 2221 [d] a motion to reargue a prior decision is granted only upon a
showing that the court overlooked or misapprehended the facts or the law or mistakenly arrived at
its earlier decision (CPLR 2221 [dJ; see William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22 lP1
Dept 1992]).
151233/2019 BAPTISTE, JAMALCO vs. NEW YORK CITY TRANSIT Page 1 of 4 Motion No. 003
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Regarding the storm in progress doctrine, a property owner or a public entity such as
Transit, is not liable for injuries sustained during falling snow or precipitation nor for a reasonable
time thereafter the storm, as property owners do not have a duty to remedy such conditions during
a storm (Valentine v. City of New York, 86 AD2d 381 [1 ' 1 Dept 1982]). further the storm in
progress doctrine has been held to apply to both exterior and interior walkways, including wet and
slippery station platfonns, subway station floors and subway station stairways (see Abraham v.
Port Auth. (~f,Vevr York & J.lew Jersey, 29 AD3d 345 [1 st Dept 2006], see also Solazzo v. Ne1,1· York
City Transit Auth., 21 J\D3d 735 [ 1'1 Dept 2005]; Kinberg v. New York City Transit Auth., 99
AD3d 583 IP1 Dept 2012]). "[A]s it is unreasonable to require the Transit Authority to keep the
floors of subway cars clean and dry during ongoing storms, when the subway cars are continuously
filled with wet commuters ... similarly, a station floor cannot be effectively kept dry in such
circumstances." (Hussein v. ,Vew York City Transit Auth., 266 J\D2d 146 [1 st Dept 19991).
Here, the Court considered all the evidence submitted, including the notice of claim filed
within a month after the accident, Plaintiff's statutory hearing testimony held less than three (3)
months after the accident, Plaintiffs deposition testimony held less than two (2) years after the
accident, photographs, and the uncertified weather reports to conclude that on the date and time of
the accident the snow in progress doctrine applied as snow was falling and Plaintin: a police officer
in pursuit of a criminal suspect, slipped and fell on a wet step of a stairway at the subject subway
station. In addition, Plaintiff as an oiiicer of the law established through his sworn testimonies at
the statutory hearing and deposition that it was snowing at the time of his accident.
This Court also considered Plaintiffs opposing aiTidavit. In opposing Transit's summary
judgment motion. Plaintiff submitted an af!idavit dated four (4) years ailer the alleged accident
(NYSCEF Doc. 71 ). There Plaintiff changed his prior testimony and asserted that he did not recall
151283/2019 BAPTISTE, JAMALCO vs. NEW YORK CITY TRANSIT Page 2 of4 Motion No. 003
2 of 4 [* 2] INDEX NO. 151283/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/12/2024
whether it was snowing at the time of his accident and that the snow/ice had been present for quite
some time. Upon reviewing it, this Court found it insufficient to raise a material question of fact.
As an affidavit by an interested party such as a plainti11~ that contradicts prior sworn statements
docs not create an issue of fact sufficient to defeat a properly supported motion for swnmary
judgment (Harty v. Lenci, 294 AD2d 296 [l st Dept 2002 ]; see Alston v. Elli off, 159 AD3d 575 (1st
Dept 2018]). Instead, at most, it creates a feigned issue of fact (id.)
Nor did the testimony by Transit's witness \vho did not recall the weather conditions or
when the area was last inspected or cleaned raise material issues of facts warranting denial of
Transit's motion. Transit's Cleaner, Jennifer Johnson, was deposed approximately three (3) years
after the accident. She testified that prior to the deposition she was not aware of any accident, nor
the weather conditions and did not recall being at the subject subway station until she reviewed a
log-book at the deposition (NYSCEf Doc. 75). Consequently, this testimony by a non-party, who
does not have an interest in the outcome of this action, given approximately three (3) years after
the accident and during the Covid-19 pandemic, did not outweigh Plaintiffs multiple testimonies
given closer in time in which he attested that snow was falling on the date of his accident. Nor
does it out weight Plaintiffs notice of claim filed less than a month after the accident also attesting
to the "presence of snow" (NYSCEf Doc. No 27).
Regarding the uncertified National Oceanic and Atmospheric Admiration (NOAA) report,
this Court agrees it would have been a better practice for Transit to submit a certified report.
However, in light of the additional evidence submitted, the uncertified report from a national
weather agency was not fatal (see e.g. Solazzo, 21 AD3d 735). The copy of the NOJ\A report
reflected weather readings from Central Park in Manhattan for the month of November and for the
date of the subject accident. Notably this accident allegedly occurred at the 59 th Street Columbus
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Circle subway station and this Court takes judicial notice to its proximity to Central Park. The
NOAA report also provided detailed data regarding temperature and precipitation readings
throughout the day on November 15, 2018.
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Baptiste v New York City Tr. Auth. 2024 NY Slip Op 32401(U) July 12, 2024 Supreme Court, New York County Docket Number: Index No. 151283/2019 Judge: Denise M. Dominguez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. "'' .----- =-+4Ef,' T__,,...m; .+ .- {Pf --- l C""" INDEX NO. 151283/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/12/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ PART 35 Justice ---------------------------------------------------------------------------------X INDEX NO. 151283/2019 JAMALCO BAPTISTE MOTION SEQ. NO. ------=-00-=--=3'------- Plaintiff
-v- DECISION AND ORDER ON NEW YORK CITY TRANSIT AUTIIORITY, METROPOLITAN TRANSPORTATION AlJTIIORITY MOTION
Defendants ---------------------------------------------------------------------------------X
The following e-filed doc um cnts, listed by NY SCEF document number (Motion 003) 86, 87, 88, 89, 90, 91 , 92, 93, 94, 95
were read on this motion to/for --- REARGCMENT/RECONSIDERATION
for the reasons that follow, Plaintiffs motion to reargue this Court's decision that granted
summary judgment to Defendants, New York City Transit Authority and \ttctropolitan
Transportation Authority (Transit) is denied.
In this slip and fall personal injury matter, a summary judgment motion in favor of Transit
\..,as granted on '.\Jovember 20, 2023. Plaintiff now timely moves for leave to reargue and upon
granting leave argues that Transit's motion should have been denied as Transit did not properly
establish the snow in progress doctrine. Plaintiff specifically alleges that Transit did not submit a
certified weather report, did not establish when the area was last cleaned or inspected, and that
Transit's own witness did not corroborate the weather conditions.
Pursuant to CPLR 2221 [d] a motion to reargue a prior decision is granted only upon a
showing that the court overlooked or misapprehended the facts or the law or mistakenly arrived at
its earlier decision (CPLR 2221 [dJ; see William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22 lP1
Dept 1992]).
151233/2019 BAPTISTE, JAMALCO vs. NEW YORK CITY TRANSIT Page 1 of 4 Motion No. 003
[* 1] 1 of 4 INDEX NO. 151283/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/12/2024
Regarding the storm in progress doctrine, a property owner or a public entity such as
Transit, is not liable for injuries sustained during falling snow or precipitation nor for a reasonable
time thereafter the storm, as property owners do not have a duty to remedy such conditions during
a storm (Valentine v. City of New York, 86 AD2d 381 [1 ' 1 Dept 1982]). further the storm in
progress doctrine has been held to apply to both exterior and interior walkways, including wet and
slippery station platfonns, subway station floors and subway station stairways (see Abraham v.
Port Auth. (~f,Vevr York & J.lew Jersey, 29 AD3d 345 [1 st Dept 2006], see also Solazzo v. Ne1,1· York
City Transit Auth., 21 J\D3d 735 [ 1'1 Dept 2005]; Kinberg v. New York City Transit Auth., 99
AD3d 583 IP1 Dept 2012]). "[A]s it is unreasonable to require the Transit Authority to keep the
floors of subway cars clean and dry during ongoing storms, when the subway cars are continuously
filled with wet commuters ... similarly, a station floor cannot be effectively kept dry in such
circumstances." (Hussein v. ,Vew York City Transit Auth., 266 J\D2d 146 [1 st Dept 19991).
Here, the Court considered all the evidence submitted, including the notice of claim filed
within a month after the accident, Plaintiff's statutory hearing testimony held less than three (3)
months after the accident, Plaintiffs deposition testimony held less than two (2) years after the
accident, photographs, and the uncertified weather reports to conclude that on the date and time of
the accident the snow in progress doctrine applied as snow was falling and Plaintin: a police officer
in pursuit of a criminal suspect, slipped and fell on a wet step of a stairway at the subject subway
station. In addition, Plaintiff as an oiiicer of the law established through his sworn testimonies at
the statutory hearing and deposition that it was snowing at the time of his accident.
This Court also considered Plaintiffs opposing aiTidavit. In opposing Transit's summary
judgment motion. Plaintiff submitted an af!idavit dated four (4) years ailer the alleged accident
(NYSCEF Doc. 71 ). There Plaintiff changed his prior testimony and asserted that he did not recall
151283/2019 BAPTISTE, JAMALCO vs. NEW YORK CITY TRANSIT Page 2 of4 Motion No. 003
2 of 4 [* 2] INDEX NO. 151283/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/12/2024
whether it was snowing at the time of his accident and that the snow/ice had been present for quite
some time. Upon reviewing it, this Court found it insufficient to raise a material question of fact.
As an affidavit by an interested party such as a plainti11~ that contradicts prior sworn statements
docs not create an issue of fact sufficient to defeat a properly supported motion for swnmary
judgment (Harty v. Lenci, 294 AD2d 296 [l st Dept 2002 ]; see Alston v. Elli off, 159 AD3d 575 (1st
Dept 2018]). Instead, at most, it creates a feigned issue of fact (id.)
Nor did the testimony by Transit's witness \vho did not recall the weather conditions or
when the area was last inspected or cleaned raise material issues of facts warranting denial of
Transit's motion. Transit's Cleaner, Jennifer Johnson, was deposed approximately three (3) years
after the accident. She testified that prior to the deposition she was not aware of any accident, nor
the weather conditions and did not recall being at the subject subway station until she reviewed a
log-book at the deposition (NYSCEf Doc. 75). Consequently, this testimony by a non-party, who
does not have an interest in the outcome of this action, given approximately three (3) years after
the accident and during the Covid-19 pandemic, did not outweigh Plaintiffs multiple testimonies
given closer in time in which he attested that snow was falling on the date of his accident. Nor
does it out weight Plaintiffs notice of claim filed less than a month after the accident also attesting
to the "presence of snow" (NYSCEf Doc. No 27).
Regarding the uncertified National Oceanic and Atmospheric Admiration (NOAA) report,
this Court agrees it would have been a better practice for Transit to submit a certified report.
However, in light of the additional evidence submitted, the uncertified report from a national
weather agency was not fatal (see e.g. Solazzo, 21 AD3d 735). The copy of the NOJ\A report
reflected weather readings from Central Park in Manhattan for the month of November and for the
date of the subject accident. Notably this accident allegedly occurred at the 59 th Street Columbus
151283/2019 BAPTISTE, JAMALCO vs. NEW YORK CITY TRANSIT Page 3 of 4 Motion No. 003
3 of 4 [* 3] INDEX NO. 151283/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/12/2024
Circle subway station and this Court takes judicial notice to its proximity to Central Park. The
NOAA report also provided detailed data regarding temperature and precipitation readings
throughout the day on November 15, 2018. As per the NOAA report, over 6 inches of snow fell,
and the temperature ranged from 40°F to 28°F on November 15, 2018. (NYSCEF Doc. 62). In
contrast, Plaintiffs uncertified weather report stating that there was no precipitation on November
15, 2018 did not provide details nor its source (NYSCEF Doc. 76). Nor did Plaintiff or Plaintiffs
counsel make any attempt to identify or explain in their affidavits and affirmations the source of
the document, preventing this Court from even inferring any truthfulness. Thus, Plaintilrs weather
report was inadmissible and feign in worthiness to raise a material question of fact.
Accordingly, upon reconsideration, Plaintiff has not made a showing that this Court's prior
decision overlooked or misapprehended facts or existing law.
Therefore, it is hereby
ORDERED that Plaintiffs motion for leave to rearguc is denied; and it is further
ORDERED that within 20 days from the entry of this order, Plain6ff shall serve a copy of
this order with notice of entry upon all parties and upon the Clerk of the Court in accordance with
the procedures set forth in the Protocol on Courthouse and County Clerk Procedures .fhr
Electronically Filed Cases (accessible at the "E-Filing" page on the court's website).
7/12/2024 DATE CHECK ONE: CASE OISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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