PEREZ v. PINNACLE GROUP INC (2019)

Order, Supreme Court, Bronx County (Kenneth L. Thompson Jr., J.), entered on or about March 14, 2018, which, upon reargument, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants satisfied their prima facie burden by showing that freezing rain was falling at the time of plaintiff's accident.  Prior to stepping on the ramp on which she slipped and fell, plaintiff testified that she looked down and saw “small balls of ice.”  When asked what caused her to fall, she testified “the bad weather—the inclement weather․ It was very slippery.  It had to be the ice.”  She also stated that while she did not know how long the ice had been there, she had used the ramp the previous afternoon, and there was no ice on it at that time (see Rodriguez v. 705–7 E. 179th St. Hous. Dev. Fund Corp., 79 A.D.3d 518, 913 N.Y.S.2d 189 [1st Dept. 2010] ).  Furthermore, certified weather records confirmed that freezing rain began to fall at 6:20 a.m., and continued until 9:51 a.m., and plaintiff's accident occurred at approximately 10:00 a.m.

In opposition, plaintiff failed to raise a triable issue of fact.  Her argument in opposition is that defendants had constructive notice of an icy condition on the subject ramp, as alleged in her son's affidavit.  This affidavit created only a feigned issue of fact, as plaintiff's son contradicted plaintiff's sworn deposition testimony with respect to the presence of ice on the ramp prior to her accident (see Luna v. CEC Entertainment, Inc., 159 A.D.3d 445, 71 N.Y.S.3d 80 [1st Dept. 2018];  Peralta–Santos v. 350 W. 49th St. Corp., 139 A.D.3d 536, 537, 30 N.Y.S.3d 553 [1st Dept. 2016] ).