WOOD v. BUFFALO AND FORT ERIE PUBLIC BRIDGE AUTHORITY (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiffs commenced this action seeking damages for injuries sustained by Jason Wood (plaintiff) when he allegedly slipped on blacktop at defendant's premises, causing him to strike his head on the doorframe of the vehicle he was entering.  Defendant appeals from an order denying its motion for summary judgment dismissing the complaint.  We affirm.

Contrary to defendant's contention, it failed to meet its initial burden on the motion of establishing that plaintiffs cannot identify the cause of plaintiff's fall without engaging in speculation (see Lane v. Texas Roadhouse Holdings, LLC, 96 A.D.3d 1364, 1364–1365, 946 N.Y.S.2d 339 [4th Dept. 2012] ).  “Although [m]ere conclusions based upon surmise, conjecture, speculation or assertions are without probative value ․, a case of negligence based wholly on circumstantial evidence may be established if the plaintiffs show[ ] facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may reasonably be inferred” (id. [internal quotation marks omitted] ).  Here, defendant submitted the deposition testimony of plaintiff in which he testified that the night was cold, that he observed prior to his fall that the blacktop was “glossy” and “shiny,” and that the glossiness was the sole explanation for his fall.  Although plaintiff did not definitively identify the glossiness or shininess as ice, “the fact that plaintiff did not observe ice does not establish that [his] fall was not caused by ice” (Smith v. United Ref. Co. of Pennsylvania, 148 A.D.3d 1733, 1733, 52 N.Y.S.3d 757 [4th Dept. 2017] ).  We reject defendant's contention that its maintenance log established as a matter of law that plaintiff did not fall on ice.  The log was insufficient to establish the condition of the blacktop at the time of the accident inasmuch as the employee who entered the data in the log stated in her deposition testimony, which was submitted by defendant in support of its motion, that the log did not reflect the actual time she inspected the relevant area, that she did not specifically record information regarding the condition of the area, and that she could not independently recall the inspection she actually performed (see generally Santiago v. Weisheng Enters. LLC, 134 A.D.3d 570, 571, 22 N.Y.S.3d 417 [1st Dept. 2015];  Webb v. Salvation Army, 83 A.D.3d 1453, 1454, 920 N.Y.S.2d 562 [4th Dept. 2011] ).

We likewise conclude that defendant failed to meet its initial burden on the motion of establishing that it lacked actual or constructive notice of the alleged icy condition.  As an initial matter, we note that plaintiffs did not allege that defendant created the icy condition, and thus we are concerned only with whether defendant possessed actual or constructive notice (see generally Navetta v. Onondaga Galleries LLC, 106 A.D.3d 1468, 1469, 964 N.Y.S.2d 835 [4th Dept. 2013] ).  With respect to constructive notice, defendant “had the initial burden of establishing as a matter of law that the alleged icy condition was not visible and apparent or that the ice formed so close in time to the accident that [defendant] could not reasonably have been expected to notice and remedy the condition” (Waters v. Ciminelli Dev. Co., Inc., 147 A.D.3d 1396, 1397, 46 N.Y.S.3d 756 [4th Dept. 2017] [internal quotation marks omitted];  see Gwitt v. Denny's, Inc., 92 A.D.3d 1231, 1231–1232, 938 N.Y.S.2d 710 [4th Dept. 2012] ).  Contrary to defendant's contention, plaintiff's deposition testimony does not establish that the condition was not visible and apparent inasmuch as plaintiff testified that he observed that the blacktop was glossy and shiny.  Moreover, the mere fact that plaintiff may have fallen on “black ice” does not, as a matter of law, establish that the condition was not visible and apparent (see generally Fuller v. Armor Volunteer Fire Co., Inc., 169 A.D.3d 1471, 1472, 93 N.Y.S.3d 516 [4th Dept. 2019];  Rogers v. Niagara Falls Bridge Commn., 79 A.D.3d 1637, 1637–1638, 914 N.Y.S.2d 539 [4th Dept. 2010] ).  We likewise reject defendant's contention that it demonstrated the absence of constructive notice by offering evidence, in the form of its inspection log, of regularly recurring maintenance or inspection of the premises.  As noted above, the employee who entered the data could not independently recall the inspection she performed and conceded that the log did not reflect the actual time she inspected the area or precisely what was done upon inspection.  Thus, the log does not reflect when the relevant area was actually inspected and cannot establish “that the ice formed so close in time to the accident that [defendant] could not reasonably have been expected to notice and remedy the condition” (Waters, 147 A.D.3d at 1398, 46 N.Y.S.3d 756 [internal quotation marks omitted];  see Sodhi v. Dollar Tree Stores, Inc., 175 A.D.3d 914, 916, 107 N.Y.S.3d 549 [4th Dept. 2019];  see generally Roy v. City of New York, 65 A.D.3d 1030, 1031, 885 N.Y.S.2d 108 [2d Dept. 2009] ).  Defendant likewise failed to meet its initial burden of establishing that it had no actual notice of the alleged icy condition (see Lewis v. Carrols LLC, 158 A.D.3d 1055, 1056, 70 N.Y.S.3d 319 [4th Dept. 2018] ).

Inasmuch as defendant failed to meet its initial burden, the court properly denied its motion without regard to the sufficiency of plaintiffs' opposing papers (see Schult v. Pyramid Walden Co., L.P., 167 A.D.3d 1577, 1577, 89 N.Y.S.3d 510 [4th Dept. 2018];  Bailey v. Curry, 1 A.D.3d 1059, 1060, 767 N.Y.S.2d 724 [4th Dept. 2003];  see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).