Thomas v. New York City Tr. Auth.

2025 NY Slip Op 31688(U)

Opinion

Thomas v New York City Tr. Auth.

2025 NY Slip Op 31688(U)

May 9, 2025

Supreme Court, Kings County Docket Number: Index No. 509033/2018 Judge: Lisa Lewis

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.

!FILED: KINGS COUNTY CLERK 05/0 9/20 25 04:4 5 p~ INDEX NO. 50903 3/2018 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 05/09 /2025

At an I.A.S. Trial Term, Part 20 of the Suprem e Court of the State of New York, held in and for the County of Kings, at the Courth ouse, located at Civic Center, Borou gh of Brook lyn, City and State of New York, on the C,t:fday of May, 2025

PRE SEN T HON. LISA LEWI S

Justice

Cal No. 41

DARY L THOM AS,

Plaintiff, Index No.: 50903 3/2018 -against-

NEW YORK CITY TRAN SIT AUTH ORITY , Defendants.

Papers Numb ered

The following papers numbe red 1 to read herein Notice of Motio n/Orde r to Show Cause / 59-66

and Affidavits (Affirm ations ) Annex ed Cross Motio n and Affidavits (Affirmation) Annex ed 74-79

Answe rs/Opp osing Affidavits (Affirmations)

80

Reply Affidavits (Affirm ations ) Affidavit (Affirm ation) Other Papers

as follows:

Upon the foregoing papers , it is ordere d that the motion is determ ined ff's compl aint and any

Defen dant's motio n for summ ary judgm ent and dismissal of plainti

cross-claims (Seq. 5) pursua nt to CPLR § 3212 is denied.

Februa ry 9, 2017, at

Plaint iff comm enced this action for personal injuries sustained on

the Winth rop Street Station approximately 5:00 PM when he slipped and fell on the stairs at Summ ons and Comp laint on numbe r "2" subway station operat ed by defendant. Plaint iff filed the

May 2, 2018, and the issue was joined on May 30, 2018.

incide nt and relies on

Defen dant argues there was an ongoin g snows torm on the day of the iffs deposi tion transc ript the storm in progress defense. Defen dant submits the pleadings, plaint

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and a climatological report (herein referred to as the "Certified Weather Report") in support of their motion. Plaintiff alleges that he slipped on snow and ice on the train stairs and that it was snowing and cold. The Certified Weather Report provides that on February 9, 2017, from 4:00 AM to 4:00 PM, there was "RA" (rain), "SN" (snow), "BR" (mist) and "BLSN" (blowing snow). Based on the foregoing, defendant contends evidence of a storm in progress warrants dismissal as defendant is afforded a reasonable amount of time after the storm ends to clear the walkway.

In opposition, plaintiff argues there are issues of fact in dispute as to whether defendant breached its duty by failing to clear the snow and ice from the stairway. He further argues that defendant's evidence is insufficient to establish a prima facie case of summary judgment, as plaintiff clearly stated that it also snowed the day before the incident and the cause of the accident was "thick" ice.

Plaintiff argues the Certified Weather Report indicates fluctuations in temperature, significant wind speeds, and variable pressure intervals and same would like exacerbate hazards like icy or slippery pathways. Moreover, plaintiff notes defendant failed to provide any maintenance logs to demonstrate timely or sufficient actions were taken to mitigate the risks. The plaintiff relied on his own 50-H transcript, wherein the plaintiff testified there was lots of snow on the ground and there was a lot of ice on the steps.

Plaintiff recounted it was snowing at the time of the accident, there was snow and ice on the stairs, and he was using the handrail while walking down. Plaintiff described the snow and ice as "dirty and gray". He testified he could not avoid stepping on the ice because it was on each one of the stairs. Plaintiff averred the ice was on every step and he saw no evidence of sand or shoveling on the stairs. He stated the ice was "so thick" and the did not know how long the ice had been there. Plaintiff testified that the cause of his slip was ice on the fourth step down from the top of

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the staircase. He further argues that the maintenance records fail to address the icy condition

present on the date of the incident, and thus, triable issues of fact remain.

Pursuant to CPLR § 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law. The motion for summary judgmen t must also "show that there is no defense to the cause of action" (Rodriguez v City of New York, 31 NY3d 312 [2018]). In deciding a summary judgmen t motion, the court does not make credibility determinations or findings of fact. Its function is to identify issues of fact, not to decide them (Vega v Restani Constr. Corp., 18 NY3d 499, 505 [2012]). Once a prima facie showing has been made, the burden shifts to the non-moving party to prove that material issues of fact exist that must be resolved at trial. (Zuckerman v City of New York ,49 NY2d 557 [1980]).

Here, defendant failed to establish a prima facie entitlement to summary judgment. While defendant demonstrated there was a storm in progress when plaintiff fell, plaintiff s testimony about the condition of the stairs at the time of his fall raised a triable issue of fact. Plaintiff established that there was evidence that snow and ice had accumulated on the stairs. Moreover, the Certified Weather Report shows that on February 7, 2017 and February 8, 2017, there was "RA" (rain), "BR" (mist) and "HZ" (haze). Thus, an issue of fact exists as to whether plaintiff s fall was caused by a pre-existing ice condition and whether defendant had a reasonable time to clear it before the accident.

The parties' remaining contentions, to the extent not expressly set forth herein, have been considered and are denied.

1 While the parties refer to a maintenan ce record, no such report was included in the record.

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[FILED: KINGS COUNTY CLERK 05/09/2025 04:45 P~ INDEX NO. 509033/2018 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 05/09/2025

Accordingly, it is hereby ORDERED that defendant New York City Transit Authority's motion for summary judgment (Motion Seq. 5) is denied.

This constitutes the Decision and Order of the Court.

For Clerks use only MG MD Motion Seq.#

~ J. S. C.

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