SCHUSTER v. DUKARM (2007)

 Plaintiff commenced this action seeking damages for injuries she sustained when she slipped and fell on ice and snow that had accumulated on the front walk of the apartment building owned by defendants.   Supreme Court erred in granting defendants' motion for summary judgment dismissing the complaint on the ground that there was a storm in progress.   Defendants did not submit the meteorological data upon which their expert meteorologist relied in support of his opinion that there was a storm in progress when plaintiff fell.  “Where [an] expert's ultimate assertions are speculative or unsupported by any evidentiary foundation, ․ the [expert's] opinion should be given no probative force” (Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68).

 Even assuming, arguendo, that defendants met their initial burden, we conclude that plaintiff raised a triable issue of fact whether the storm had abated and whether defendants had a reasonable opportunity to clear accumulated snow from their parking lot before plaintiff fell (see Grzankowski v. Southgate Plaza, 267 A.D.2d 1055, 700 N.Y.S.2d 917;  see also Williams v. Geneva B. Scruggs Community Health Care Ctr., 255 A.D.2d 982, 680 N.Y.S.2d 771).   In addition, plaintiff raised an issue of fact whether she slipped on ice that had accumulated prior to the storm and thus whether “the ice was a preexisting hazard and was not created by the storm in progress so as to defeat defendants' motion” (Pacelli v. Pinsley, 267 A.D.2d 706, 707, 699 N.Y.S.2d 530).

It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is reversed on the law without costs, the motion is denied and the complaint is reinstated.

We respectfully dissent because, in our view, Supreme Court properly granted the motion of defendants for summary judgment dismissing the complaint on the ground that there was a storm in progress.   Defendants established that there was a storm in progress by submitting the deposition testimony of defendant Ellen Dukarm, in which she testified that six to eight inches of snow fell on the day of the accident, that she and her husband, defendant John R. Dukarm, shoveled the walkway from their front steps to the municipal sidewalk three times during the day, the last time being late in the afternoon, and that it continued to snow throughout the day (see Coyne v. Talleyrand Partners, L.P., 22 A.D.3d 627, 628-629, 802 N.Y.S.2d 513, lv. denied 6 N.Y.3d 705, 812 N.Y.S.2d 34, 845 N.E.2d 466;  Mangieri v. Prime Hospitality Corp., 251 A.D.2d 632, 633, 676 N.Y.S.2d 207).   In addition, defendants submitted plaintiff's deposition testimony, in which plaintiff admitted that she had observed defendants shoveling the walk and that it “snowed on and off” throughout the day.

Contrary to the view of the majority, we conclude that the court properly relied upon the affidavit of the expert meteorologist, despite his failure to attach copies of the records upon which he relied in stating that it snowed throughout the day, that there was “considerable blowing snow during the afternoon hours,” continuing until the time of the accident, and that “the weather event [on the day in question] constitutes a storm in progress.”   The expert listed the specific records upon which he relied, which are National Weather Service records concerning weather conditions in the area in question.   Contrary to the majority's conclusion, “an expert may rely on out-of-court material if ‘it is of a kind accepted in the profession as reliable in forming a professional opinion’ ” (Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 726, 480 N.Y.S.2d 195, 469 N.E.2d 516;  see Greene v. Xerox Corp., 244 A.D.2d 877, 877-878, 665 N.Y.S.2d 137, lv. denied 91 N.Y.2d 809, 670 N.Y.S.2d 403, 693 N.E.2d 750).  “In order to qualify for the ‘professional reliability’ exception, there must be evidence establishing the reliability of the out-of-court material” (Hambsch, 63 N.Y.2d at 726, 480 N.Y.S.2d 195, 469 N.E.2d 516).   The records at issue are public weather records, which are by statute deemed prima facie evidence of the facts stated therein (see CPLR 4528).

We also disagree with the majority that plaintiff raised a triable issue of fact whether the storm had abated at the time of her accident.   The only indication in the record that snow had ceased falling for any appreciable period of time is the statement of plaintiff in her opposing affidavit, wherein she stated that, “upon information and belief, snow had stopped falling one or more hours before [her accident].”   The court properly disregarded that statement.   First, the statement was not made on personal knowledge and therefore is of no probative value (see Bruce v. Fashion Sq. Assoc., 8 A.D.3d 1053, 778 N.Y.S.2d 823;  Mic Prop. & Cas. Ins. Corp. v. Custom Craftsman of Brooklyn, 269 A.D.2d 333, 334, 703 N.Y.S.2d 179).   Second, plaintiff previously had testified at her deposition that she did not notice when the snow stopped.   Thus, the statement is merely an attempt to avoid the implications of her prior testimony by raising a feigned issue of fact (see Richter v. Collier, 5 A.D.3d 1003, 1004, 773 N.Y.S.2d 645;  Martin v. Savage, 299 A.D.2d 903, 904, 750 N.Y.S.2d 684).   In any event, “even if there was a lull or break in the storm around the time of plaintiff's accident, this does not establish that defendant[s] had a reasonable time after the cessation of the storm to correct hazardous snow or ice-related conditions” (Krutz v. Betz Funeral Home, 236 A.D.2d 704, 705, 653 N.Y.S.2d 212, lv. denied 90 N.Y.2d 803, 661 N.Y.S.2d 179, 683 N.E.2d 1053;  see Baia v. Allright Parking Buffalo, Inc., 27 A.D.3d 1153, 811 N.Y.S.2d 843;  Jensen v. Roohan, 233 A.D.2d 587, 588, 649 N.Y.S.2d 100).

The majority's conclusion that there is a triable issue of fact whether plaintiff slipped on ice that existed prior to the storm is also based solely upon a statement in plaintiff's affidavit, in which plaintiff stated that she slipped on ice and snow.   That statement contradicts her prior deposition testimony that she did not know what caused her to fall and that she did not see any ice, and thus must be regarded as another attempt to avoid the implications of her prior testimony (see Richter, 5 A.D.3d at 1004, 773 N.Y.S.2d 645;  Martin, 299 A.D.2d at 904, 750 N.Y.S.2d 684).   More importantly, plaintiff did not state that she slipped on preexisting ice, and thus the majority's conclusion that there is an issue of fact whether the ice that allegedly caused plaintiff's fall existed prior to the storm is mere conjecture (see generally Jornov v. Ace Suzuki Sales & Serv., 232 A.D.2d 855, 857, 648 N.Y.S.2d 800;  Croff v. Grand Union Co., 205 A.D.2d 856, 613 N.Y.S.2d 448).

MEMORANDUM: