Krinsky v. Fortunato

Appellate Division of the Supreme Court of New York

Krinsky v. Fortunato

82 A.D.3d 409, 918 N.Y.2d 40

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 1, 2011

StatusPublished

Cited by3 cases

This text of 82 A.D.3d 409 (Krinsky v. Fortunato) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Krinsky v. Fortunato, 82 A.D.3d 409, 918 N.Y.2d 40 (N.Y. Ct. App. 2011).

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Opinion

Dismissal of the complaint was warranted where plaintiffs fall occurred while a storm was in progress (see Solazzo v New York City Tr. Auth., 21 AD3d 735 [2005], affd 6 NY3d 734 [2005]). The climatological records of the day of plaintiffs accident showed a snowfall that resulted in a total accumulation of 2.8 inches (see Abaya v City of New York, 257 AD2d 446 [1999]). Even crediting plaintiffs testimony that the snow had completely stopped 30 to 45 minutes before her fall, such a short lapse of time is insufficient to impart liability on defendants (see Rodriguez v New York City Hous. Auth., 52 AD3d 299 [2008]; Nayman v New York City Tr. Auth., 25 AD3d 376 [2006]), and plaintiff’s contention that her fall was the result of improper snow removal is speculative (see Joseph v Pitkin Carpet, Inc., 44 AD3d 462, 464 [2007]).

Defendants also established, through the affidavit of their expert, that the cracked condition of the sidewalk was too trivial to be actionable (see Trincere v County of Suffolk, 90 NY2d 976 [1997]). Plaintiffs affidavit in opposition is insufficient to defeat the motion, as it contradicts her deposition testimony (see Disla v City of New York, 65 AD3d 949 [2009]). Concur— Gonzalez, PJ., Tom, Andrias, Renwick and Abdus-Salaam, JJ.

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Dismissal of the complaint was warranted where plaintiffs fall occurred while a storm was in progress (see Solazzo v New York City Tr. Auth., 21 AD3d 735 [2005], affd 6 NY3d 734 [2005]). The climatological records of the day of plaintiffs accident showed a snowfall that resulted in a total accumulation of 2.8 inches (see Abaya v City of New York, 257 AD2d 446 [1999]). Even crediting plaintiffs testimony that the snow had completely stopped 30 to 45 minutes before her fall, such a short lapse of time is insufficient to impart liability on defendants (see Rodriguez v New York City Hous. Auth., 52 AD3d 299 [2008]; Nayman v New York City Tr. Auth., 25 AD3d 376 [2006]), and plaintiff’s contention that her fall was the result of improper snow removal is speculative (see Joseph v Pitkin Carpet, Inc., 44 AD3d 462, 464 [2007]).

Defendants also established, through the affidavit of their expert, that the cracked condition of the sidewalk was too trivial to be actionable (see Trincere v County of Suffolk, 90 NY2d 976 [1997]). Plaintiffs affidavit in opposition is insufficient to defeat the motion, as it contradicts her deposition testimony (see Disla v City of New York, 65 AD3d 949 [2009]). Concur— Gonzalez, PJ., Tom, Andrias, Renwick and Abdus-Salaam, JJ.

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Bluebook (online)

82 A.D.3d 409, 918 N.Y.2d 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krinsky-v-fortunato-nyappdiv-2011.

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