Womble v. NYU Hospitals Center

Appellate Division of the Supreme Court of New York

Womble v. NYU Hospitals Center

123 A.D.3d 469, 998 N.Y.S.2d 49

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

DecidedDecember 9, 2014

Docket13699 307471/11

StatusPublished

Cited by2 cases

This text of 123 A.D.3d 469 (Womble v. NYU Hospitals Center) 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

Womble v. NYU Hospitals Center, 123 A.D.3d 469, 998 N.Y.S.2d 49 (N.Y. Ct. App. 2014).

Pincite

Opinion

*470 Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered December 23, 2013, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously modified, on the law, to the extent of dismissing so much of plaintiffs claim as is predicated upon sections of the Administrative Code of the City of New York, and otherwise affirmed, without costs.

Defendant failed to establish entitlement to judgment as a matter of law where the certified climatological data report it relied upon to support its defense of a storm-in-progress lacked a key explaining the data codes used in the report. Defendant also failed to offer evidence as to its last pre-accident inspection of the sidewalk condition, predicated upon personal knowledge, to address the deposition testimony given by plaintiff and defendant’s own security guard that indicated that at least one to two inches of grey slushy snow and ice existed on the sidewalk at the time of plaintiff’s fall. Accordingly, defendant failed to show that it had a basis for claiming a lack of notice of the alleged snow/ice condition (see e.g. DeCanio v Principal Bldg. Servs. Inc., 115 AD3d 579 [1st Dept 2014]; Mike v 91 Payson Owners Corp., 114 AD3d 420 [1st Dept 2014]). Defendant’s lone witness testified that he did not arrive at the building for work until after plaintiffs accident, and had not been at work for a week prior to the accident.

Even assuming that defendant met its burden on the motion, plaintiffs opposition raised triable issues of fact. Such issues include whether a storm was in progress at the time of plaintiffs fall; whether old snow and ice from prior, recent snowfalls had contributed to the subject hazardous condition; whether defendant had notice of an alleged preexisting hazardous condition in time to remedy it; and whether a preexisting condition was merely exacerbated by the most recent freezing rain which measured only three-one hundredths of an inch in the 90 minutes prior to plaintiffs fall (see Mike v 91 Payson Owners Corp., 114 AD3d at 420; Penn v 57-63 Wadsworth Terrace Holding, LLC, 112 AD3d 426 [1st Dept 2013]; Vosper v Fives 160th, LLC, 110 AD3d 544 [1st Dept 2013]).

The order is modified to the extent indicated because the sections of the Administrative Code that plaintiff refers to have either been repealed (§§ 27-127, 27-128), or are inapplicable (§§ 27-104, 28-301.1).

Concur — Sweeny, J.P., DeGrasse, ManzanetDaniels, Feinman and Gische, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

*470 Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered December 23, 2013, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously modified, on the law, to the extent of dismissing so much of plaintiffs claim as is predicated upon sections of the Administrative Code of the City of New York, and otherwise affirmed, without costs.

Defendant failed to establish entitlement to judgment as a matter of law where the certified climatological data report it relied upon to support its defense of a storm-in-progress lacked a key explaining the data codes used in the report. Defendant also failed to offer evidence as to its last pre-accident inspection of the sidewalk condition, predicated upon personal knowledge, to address the deposition testimony given by plaintiff and defendant’s own security guard that indicated that at least one to two inches of grey slushy snow and ice existed on the sidewalk at the time of plaintiff’s fall. Accordingly, defendant failed to show that it had a basis for claiming a lack of notice of the alleged snow/ice condition (see e.g. DeCanio v Principal Bldg. Servs. Inc., 115 AD3d 579 [1st Dept 2014]; Mike v 91 Payson Owners Corp., 114 AD3d 420 [1st Dept 2014]). Defendant’s lone witness testified that he did not arrive at the building for work until after plaintiffs accident, and had not been at work for a week prior to the accident.

Even assuming that defendant met its burden on the motion, plaintiffs opposition raised triable issues of fact. Such issues include whether a storm was in progress at the time of plaintiffs fall; whether old snow and ice from prior, recent snowfalls had contributed to the subject hazardous condition; whether defendant had notice of an alleged preexisting hazardous condition in time to remedy it; and whether a preexisting condition was merely exacerbated by the most recent freezing rain which measured only three-one hundredths of an inch in the 90 minutes prior to plaintiffs fall (see Mike v 91 Payson Owners Corp., 114 AD3d at 420; Penn v 57-63 Wadsworth Terrace Holding, LLC, 112 AD3d 426 [1st Dept 2013]; Vosper v Fives 160th, LLC, 110 AD3d 544 [1st Dept 2013]).

The order is modified to the extent indicated because the sections of the Administrative Code that plaintiff refers to have either been repealed (§§ 27-127, 27-128), or are inapplicable (§§ 27-104, 28-301.1).

Concur — Sweeny, J.P., DeGrasse, ManzanetDaniels, Feinman and Gische, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

123 A.D.3d 469, 998 N.Y.S.2d 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/womble-v-nyu-hospitals-center-nyappdiv-2014.

Opinion

Related

Cite This Page — Counsel Stack