Mosley v. General Chauncey M. Hooper Towers Housing Development Fund Co.
Full Opinion (html_with_citations)
Order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 9, 2007, which, in an action for personal
Plaintiffs deposition testimony that it was snowing when she fell at around 9:00 a.m., that it had been snowing the entire night before, that the entire sidewalk was white with snow, and that she slipped on snow, not ice, satisfied defendantās initial burden of showing that plaintiff fell because of a dangerous snow condition created by a storm in progress (see Administrative Code of City of NY § 16-123 [a]). In opposition, plaintiff submitted an affidavit stating that she slipped on ice as well as snow and that while there were snow flurries the morning of her accident, there was no accumulation; photographs of a sidewalk with patches of ice, identified by plaintiff at her deposition as fairly and accurately depicting the area of sidewalk where she fell; and climatological data showing that on the day before plaintiffs fall, New York City had .92 inches of ārainā and ādrizzleā between 1:00 p.m. and 7:00 p.m., and that there was no precipitation on the day of plaintiffs fall. An issue of fact exists as to whether, inter alia, plaintiff was mistaken when she testified at deposition that it was snowing when she fell (see Howard v J.A.J. Realty Enters., 283 AD2d 854, 855-856 [2001] [summary judgment in defendantās favor precluded by conflict between plaintiffs deposition testimony that it was snowing and affidavit of meteorological expert that it was not]; cf. Powell v MLG Hillside Assoc., 290 AD2d 345, 345 [2002] [evidence of storm in progress especially persuasive when based on analysis of licensed meteorologist]). ConcurāMazzarelli, J.P., Andrias, Saxe, Gonzalez and Sweeny, JJ.