

Saavedra v City of New York (2016 NY Slip Op 01435)





Saavedra v City of New York


2016 NY Slip Op 01435


Decided on March 1, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 1, 2016

Acosta, J.P., Renwick, Andrias, Moskowitz, JJ.


351 309136/11

[*1]Paulo Saavedra, Plaintiff-Appellant,
vThe City of New York, Defendant-Respondent.


Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Mackenzie Fillow of counsel), for respondent.

Order, Supreme Court, Bronx County (Mitchell J. Danzinger, J.), entered August 7, 2014, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant made a prima facie showing that it neither created nor had actual or constructive notice of the specific icy condition alleged to have caused plaintiff's slip and fall. In support of its motion, defendant submitted deposition testimony showing its substantial snow and ice removal efforts in the area of the accident in the days preceding the accident. Defendant also submitted climatological data showing temperature fluctuations above and below freezing in the two days before the date of the accident, as well as freezing temperatures in the hours immediately preceding the accident. Taken together, defendant's evidence shows that it would be speculative to conclude that it caused or had sufficient time to remedy the icy condition at issue (see Simmons v Metropolitan Life Ins. Co., 84 NY2d 972, 973-974 [1994]; Katz v City of New York, 11 AD3d 391 [1st Dept 2004]; see also Otero v City of New York, 248 AD2d 689, 690 [2d Dept 1998]). Defendant was not required to submit an expert's opinion in support of its motion (see e.g. Katz, 11 AD3d at 391-392; Riviere v City of New York, 127 AD3d 720, 724 [2d Dept 2015]).
In opposition, plaintiff failed to raise triable issues of fact (Katz, 11 AD3d at 392).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 1, 2016
CLERK


