The following e-filed documents listed on NYSCEF (Motion No. 002) numbered 33-41, [*2]44-47, were read on this motion.

Upon the foregoing documents, and after oral argument conducted on October 10, 2024, on Motion Sequence No. 002, Motion Sequence No. 002 is resolved and therefore, it is hereby,

ORDERED, that Defendant's request for summary judgment pursuant to CPLR § 3212 [a] dismissing Plaintiff's Complaint in all respects against Defendant is DENIED, and it is further;

ORDERED, that counsel shall appear for a conference on November 20, 2024, at 9:30 A.M. at the Courthouse located at 26 Central Avenue, Courtroom 330, Staten Island, NY, and it is further;

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

On or about April 8, 2023, Plaintiff commenced this negligence action to recover for personal injuries allegedly sustained by Plaintiff, Timothy Folkes, because of a fall that occurred at a residence owned by the Defendants located at 79 Weiner Street, Staten Island, New York. Defendant filed Motion Sequence No. 002 by Notice of Motion on August 12, 2024, seeking (a) summary judgment pursuant to CPLR § 3212 [a] dismissing Plaintiff's Complaint against Defendant; and (b) for such other and further relief that this Court may deem just and proper.

Plaintiff filed opposition on September 20, 2024. Defendant filed reply on October 2, 2024. Oral argument was completed on October 10, 2024.

On February 2, 2022, Plaintiff, Timothy Folkes, who was a tenant of the Defendants, was involved in a slip and fall while descending the steps at the residence owned by the Defendants located at 79 Weiner Street, Staten Island, New York.

Plaintiff testified that on the day before the accident, "it wasn't raining, probably like a sunny or cloudy day" (NY St Cts Filing [NYSCEF] Doc No. 37 at page 20, lines 5-7) and when he left the apartment that morning it was dark and cold out. (see id at lines 10-11). Plaintiff was questioned whether it had snowed in the days prior to the alleged accident and replied that it had snowed probably five days before. (see id at lines 12-15).

Plaintiff further testified that he arrived home on the day before the alleged accident at approximately 4:30 PM and remained home until he left the next day. (see id at 16-23). Plaintiff testified as to his observations of the steps upon his return home on February 1, 2022:

Q. Did you notice anything on the steps; debris, ice, snow, water?

A. No.

Q. The steps were clear the day before the accident?

A. Yes. (see id at Page 21, lines 4-9).

Plaintiff testified regarding his alleged fall, while descending the steps the next day:

Q. When you were walking down the steps in the moment before your accident, did you anything on the steps?

A. Before no.

Q. What about after the fall, did you notice anything on the steps?

A. Yes.

Q. What was it you noticed?

A. A patch of ice.

Q. Do you know how long that patch of ice was there before you saw it that morning?

A. No, I'm assuming it formed from the overnight.

Q. It wasn't there the day before but you noticed after you had your accident; is that fair to say?

A. Yes.

Q. Did anyone else tell they saw the patch of ice before the accident?

A. No. (see id at pages 21-22).

Plaintiff further testified that neither he nor, to his knowledge, did anyone else make any complaints to the Defendants about the steps prior to the alleged accident. (see id page 22, lines 15-23).

Defendants Carlo Randazzo and Loredana Randazzo provide in their sworn affidavits that at no time on or prior to February 2, 2022, were they aware of any ice conditions on the stairs where Plaintiff's alleged fall occurred; they never observed ice on the stairs; the stairs are pitched, so water runs off them to prevent ice from forming; there was never a recurring condition of ice on the steps prior to February 2, 2022 and to their knowledge no ice was present on February 1, 2022 or February 2, 2022. (NY St Cts Filing [NYSCEF] Doc Nos. 38; 39).

"Summary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law. Since it deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (see Andre v. Pomeroy, 35 NY2d 361 [1974] citing Millerton Agway Cooperative, Inc. v. Briarcliff Farms, Inc., 17 NY2d 57 [1966]).

"[T]he elements of a cause of action sounding in negligence are: (1) the existence of a duty on the defendant's part as to the plaintiff; (2) a breach of this duty; and (3) an injury to the plaintiff as a result thereof" (see Poon v Nisanov, 162 AD3d 804 [2d Dept 2018] quoting Stukas v Streiter, 83 AD3d 18 [2d Dept 2011]).

"Accordingly, a defendant who moves for summary judgment dismissing a cause of action alleging negligence may sustain his or her initial burden by 'establishing, prima facie, that he or she was not at fault in the happening of the subject accident'" (see id quoting Boulos v. Lerner-Harrington, 124 AD3d 709 [2d Dept 2015] citing Goldstein v Kingston, 153 AD3d 1235 [2d Dept 2017]; Searless v Karczewski, 153 AD3d 957 [2d Dept 2017]; Victor v Daley, 150 AD3d 1307 [2d Dept 2017]; Faust v Gerde, 150 AD3d 1204; Faust v Gerde, 150 AD3d 1204 [2d Dept 2017]).

"In order to impose liability upon a defendant in a slip and fall case, there must be evidence tending to show the existence of a dangerous or defective condition, and that the defendant either created the condition or had actual or constructive knowledge of it" (see Sadowsky v 2175 Wantagh Ave. Corp., 281 AD2d 407 [2d Dept 2001] citing Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; King v New York City Transit Auth., 266 AD2d 354 [2d Dept 1999]; Patrick v Cho's Fruit & Vegetables, 671 NYS.2d 274 [2d Dept 1998]).

"A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence" (see Coelho v S&A Neocronon, Inc., 178 AD3d 662 [2d Dept 2019] citing Bombino-Munroe v Church of St. Bernard, 163 AD3d 616 [2d Dept [*3]2018]; Castillo v Silvercrest, 134 AD3d 977 [2d Dept 2015]; Cuillo v Fairfield Prop. Servs., L.P., 112 AD3d 777 [2d Dept 2013]).

A "defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it" (see id quoting Castillo v Silvercrest, 134 AD3d 977 [2d Dept 2015]).

"To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (see id quoting Ahmetaj v Mountainview Condominium, 171 AD3d 683 [2d Dept 2019]; citing Feola v City of New York, 102 AD3d 827 [2d Dept 2013]).

Plaintiff testified that when he returned home on February 1, 2024, at 4:30 PM the steps were clear and there was no debris, ice, snow, or water on the steps. (NY St Cts Filing [NYSCEF] Doc No. 37 at Page 21, lines 4-9). Plaintiff further testified that after having fallen while he was descending the steps the next day at 4:30 AM (NY St Cts Filing [NYSCEF] Doc No. 14), he noticed a patch of ice, that he assumed formed overnight. (NY St Cts Filing [NYSCEF] Doc No. 37 at Page 21, lines 14-23).

Defendants contend that at no time on or prior to February 2, 2022, were they aware of any ice conditions on the stairs; they never observed ice on the stairs; the stairs are pitched, so water runs off them to prevent ice from forming; there was never a recurring condition of ice on the steps prior to February 2, 2022 and to their knowledge no ice was present on February 1, 2022 or February 2, 2022. (NY St Cts Filing [NYSCEF] Doc Nos. 38; 39). Defendants premise their argument on their contention that there has never been a problem with ice forming on the steps and that the steps are designed to be pitched in a manner that water purportedly "runs off of them to prevent ice from forming." (NY St Cts Filing [NYSCEF] Doc Nos. 39).

Defendants did not provide any indication of the frequency of any inspections of the property or if they ever inspect the property. Defendants did not provide any testimony of how snow or ice is removed, the frequency of such removal, or how the need for such services are reported to them.

"A defendant property owner moving for summary judgment in an action to recover damages for personal injuries sustained in a slip-and-fall accident has the initial burden of establishing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it" (see Ferro v 43 Bronx Riv. Rd., 139 AD3d 897 [2d Dept 2016] citing Dhu v New York City Hous. Auth., 119 AD3d 728 [2d Dept 2014]; Hall v Staples the Off. Superstore E., Inc., 135 AD3d 706 [2d Dept 2016]; Spinoccia v Fairfield Bellmore Ave., LLC, 95 AD3d 993 [2d Dept 2012]).

"To provide constructive notice, 'a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it'" (see id quoting Kulchinsky v Consumers Warehouse Ctr., Inc., 134 AD3d 1068 [2d Dept 2015] quoting Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; citing Farren v Board of Educ. of City of NY, 119 AD3d 518 [2d Dept 2014]).

In Ferro v 43 Bronx Riv. Rd, the Defendants

established their prima facie entitlement to judgment as a matter of law by demonstrating that they neither created nor had actual or constructive notice of the ice condition that allegedly caused the plaintiff to fall. The deposition testimony of both the plaintiff and the building's superintendent, which was submitted in support of the motion, established [*4]that neither had observed any ice in the location of the plaintiff's fall at any time prior to or after the accident. The plaintiff also testified that she safely traversed the lot to reach her car minutes before her fall and was walking the same route to return to the apartment building when she fell. The building's superintendent testified that he applied salt to the parking lot 3½ hours prior to the accident and inspected the lot 1½ hours prior to the accident and did not observe any ice at that time. His deposition also demonstrated that the defendants did not receive any complaints of an ice condition in the parking lot prior to the plaintiff's accident. (see (see Ferro v 43 Bronx Riv. Rd., 139 AD3d 897 [2d Dept 2016]).

Here, the only inspection of the premises where the accident occurred was one made by the Plaintiff twelve full hours before the incident occurred. Defendants provided no testimony regarding any inspection process whatsoever. Defendants have failed to establish as a matter of law that they did not have constructive notice of the condition, as they failed to proffer any evidence as to when the subject area was last cleaned or inspected before the Plaintiff's fall, or that the condition existed for an insufficient length of time for them to discover and remedy it (see McPhaul v Mutual of Am. Life Ins. Co., 81 AD3d 609 [2d Dept 2011] citing Totten v Cumberland Farms, Inc., 57 AD3d 653 [2d Dept 2008]; Stroppel v Wal-Mart Stores, Inc., 53 AD3d 651 [2d Dept 2008]; Valdez v Aramark Servs., Inc., 23 AD3d 639 [2d Dept 2005]).

Accordingly, Defendant's request for summary judgment pursuant to CPLR § 3212 [a] dismissing Plaintiff's Complaint in all respects against Defendant is DENIED.

It is hereby ORDERED, that Defendant's request for summary judgment pursuant to CPLR § 3212 [a] dismissing Plaintiff's Complaint in all respects against Defendant is DENIED, and it is further;

ORDERED, that counsel shall appear for a conference on November 20, 2024, at 9:30 A.M. at the Courthouse located at 26 Central Avenue, Courtroom 330, Staten Island, NY, and it is further;

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of the Court.