Practice point: Defendants established their entitlement to judgment as a matter of law by submitting certified weather records and a meteorologist's affidavit showing that a winter storm was in progress at the time that plaintiff slipped and fell on ice covering the sidewalk in front of defendants' building. Plaintiff himself testified that it was sleeting at the time he fell at approximately 8 a.m., and defendants' porter stated that it had hailed through the night and a "slow rain" was falling at the time of the accident.
As plaintiff's opposing papers did not create a triable issue of fact, the Appellate Division reversed, and dismissed the complaint.
Student note: Plaintiff submitted an affidavit of an expert meteorologist who did not dispute that freezing rain was ongoing at the time plaintiff fell, but concluded that defendants should have cleared and treated the sidewalk during the previous afternoon, when it was only drizzling. However, defendants' porter was not required to clear the public sidewalk of snow or ice during freezing precipitation. In addition, plaintiff's expert did not opine that in the 30 hours preceding the accident there was ever a four-hour lull in the storm that would give rise to defendants' duty to have cleared snow and ice from the public sidewalk, pursuant to Administrative Code of City of NY § 16-123. Finally plaintiff's testimony also provided no support for the theory that the ice was old or preexisting, as he did not recall any unusual snow or ice conditions on the sidewalk when he walked there the previous night.
Case: Levene v. No. 2 W. 67th St., Inc., NY Slip Op 02072 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: Res ipsa loquitur in a podiatric malpratice action.
