Morel v. New York City Tr. Auth.

Morel v New York City Tr. Auth. 2025 NY Slip Op 32176(U) June 18, 2025 Supreme Court, New York County Docket Number: Index No. 451898/2018 Judge: Richard Tsai Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: NEW YORK COUNTY CLERK 06/18/2025 04:40 PM INDEX NO. 451898/2018 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 06/18/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. RICHARD TSAI PART 21 Justice ---------------------------------------------------------------------------------X INDEX NO. 451898/2018 FRANCISCO MOREL, Plaintiff, MOTION DATE 10/21/2024

-v- MOTION SEQ. NO. 002

NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, and DECISION + ORDER ON MTA NEW YORK CITY TRANSIT, MOTION Defendants. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document numbers (Motion 002) 23-38, 40, 42-50 were read on this motion to/for JUDGMENT - SUMMARY .

Upon the foregoing documents, it is ORDERED that defendants’ motion for summary judgment is GRANTED IN PART TO THE EXTENT THAT the complaint is severed and dismissed as against defendants Metropolitan Transportation Authority and MTA New York City Transit, with costs and disbursements to defendant Metropolitan Transportation Authority as taxed by the Clerk upon submission on an appropriate bill of costs, and the motion is otherwise denied; and it is further

ORDERED that the remainder of the action shall continue.

At his deposition, plaintiff testified that, on the morning of February 19, 2016, at approximately 9:30 a.m., he slipped and fell when descending the staircase of the 155th Street subway station (see Exhibit F in support of defendants’ motion, plaintiff’s EBT at 31, lines 7-10, 23-24; at 38, line 11 through 41, line 9; see also Exhibit D in support of defendants’ motion, verified bill of particulars ¶ 2 [NYSCEF Doc. No. 28]; see also Exhibit E in support of defendants’ motion, statutory hearing tr at 24, lines 18-21 [NYSCEF Doc. No. 29]).

According to plaintiff, it was snowing when plaintiff left the house (plaintiff’s EBT at 37, lines 17-19). Plaintiff testified that, after he fell, he saw “the salt between my hands and between my feet” (id. at 40, lines 2-3). Plaintiff claimed that he did not see any salt, snow melt, or other white material on the ground at the top of the stairway before he started to go down (id. at 39). When asked why he slipped and fell, plaintiff responded “because it was wet” (id. at 43, line 9-17).

Defendants now move for summary judgment dismissing the complaint, on the ground that a storm was in progress. Defendants further argue that they are entitled to summary judgment because they “acted as a reasonable landowner” in that “snow 451898/2018 MOREL, FRANCISCO vs. NEW YORK CITY TRANSIT Page 1 of 4 Motion No. 002

FILED: NEW YORK COUNTY CLERK 06/18/2025 04:40 PM INDEX NO. 451898/2018 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 06/18/2025

FILED: NEW YORK COUNTY CLERK 06/18/2025 04:40 PM INDEX NO. 451898/2018 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 06/18/2025

FILED: NEW YORK COUNTY CLERK 06/18/2025 04:40 PM INDEX NO. 451898/2018 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 06/18/2025

judgment dismissing the complaint, because “[t]he record shows that the presence of the calcium chloride was open and obvious and not inherently dangerous” (id.).

At plaintiff’s statutory hearing, he testified that he “slipped over the salt” (defendants’ exhibit E [NYSCEF Doc. No. 29] at 30, line 25 through 31, line 4), whereas at plaintiff’s deposition, he testified that he slipped “because it was wet” (plaintiff’s deposition at 43, line 9-17), and that he saw the salt after he fell (id. at 46, lines 10-17). Thus, plaintiff’s own differing accounts raise issues of fact as to whether the salt used on staircase caused him to slip and fall, as opposed to an allegedly dangerous condition that was created by the application of salt, which warrants denial of summary judgment.

Defendants do not argue that plaintiff’s deposition testimony could not be considered because it was impermissibly tailored to avoid the consequences of plaintiff’s earlier statutory hearing testimony so as to avoid summary judgment (see Carter v New York City Hous. Auth., 101 AD3d 510, 511 [1st Dept 2012]). In any event, even if the court were to disregard plaintiff’s deposition testimony as impermissibly tailored, summary judgment on the ground that the salt on the staircase, was not, as a matter of law, inherently dangerous is denied.

First, defendants contend that the “salt” upon which plaintiff allegedly slipped was rock salt (see defendants’ memo of law at 6 [“The rock salt used on the subway staircase . . . was not inherently dangerous”]). Although Rivers held that the presence of calcium chloride is not inherently dangerous, there appears to be no appellate cases which hold that rock salt (i.e., sodium chloride) spread on a staircase as part of snow removal efforts cannot, as a matter of law, be inherently dangerous. In Rivers, the defendants’ safety expert opined that calcium chloride “would have been soft and pliable not have been slippery at the time of the accident” (106 AD3d at 493). Unlike Rivers, defendants submitted no expert testimony that the characteristics of the rock salt used here were identical to those of calcium chloride, i.e., that the salt was soft, pliable, and not slippery. 20250618160128RTS~6858935E9C0C2C74059

6/18/2025 DATE RICHARD TSAI, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

451898/2018 MOREL, FRANCISCO vs. NEW YORK CITY TRANSIT Page 4 of 4 Motion No. 002

4 of 4 [* 4]

Footnotes

[1] of 4 [* 1] removal procedures were employed” in the hours before plaintiff’s accident, with such procedures including placing rock salt on the subject staircase (defendants’ memorandum of law in support of motion [NYSCEF Doc. No. 35] at 6 of 11). Additionally, defendants argue that the rock salt used on the subway staircase was open and obvious, did not create a dangerous condition, and was not inherently dangerous (id.). Finally, defendants assert that defendant Metropolitan Transportation Authority did not own, operate control, or maintain the subway station and that defendant MTA New York City Transit does not exist. With the exception of this argument for dismissing the action as against defendants Metropolitan Transportation Authority and MTA New York City Transit, plaintiff opposes the motion. Preliminarily, as there is no dispute that defendants Metropolitan Transportation Authority and MTA New York City Transit have no liability for the happening of the accident (affirmation in opposition to motion [NYSCEF Doc. No. 43] ¶ 10), the branch of the motion seeking dismissal of the complaint as against these defendants is granted (see Delacruz v Metropolitan Transp. Auth., 45 AD3d 482, 483 [1st Dept 2007] [“It is well settled, as a matter of law, that the functions of the MTA with respect to public transportation are limited to financing and planning, and do not include the operation, maintenance, and control of any facility”]; see also Archer v New York City Tr. Auth.,

[187] AD3d 564 [1st Dept 2020]). In support of the remainder of their motion, defendants submit a certified climatological report from the weather stations at LaGuardia Airport and from Central Park (see Exhibit H in support of defendants’ motion [NYSCEF Doc. No. 32]). According to the climatological report from LaGuardia Airport, there was no precipitation at all on the morning of February 19, 2016, which states, in relevant part: .,,,.,,,., National Cen!IH'1 fo{ Elwlronmental Information · U.S. o.partmel\l of Commerce Local Climatological Data 151 PattonAvenue National Oceanic & Atmospheric Administration Nalk>nal Environmental Satellite, Oat.a, and Information Service Hourly Observat ions Asheville. North Carofrna 28901 Febru ary 20 16 current Location: Elev: 10 fl Lat 40.nss• N Lon: 73.8803• w Generated on 05/10/2024 Station: LAGUARCIA AIRPORT, NY US WBAN:14732 (ICAO:KLGA) ~ Tlmc ~ta- Ske Ory Bul b Visi- 1-W-••_lh_e_,T_Y_P<_(_•"_d_oc_u_me_nta_"_·•-•)+ _T ;,;••;:;m.::. Wet Bulb p_+-_;_ Dew Point Te,.m_;,:p_+_T7•mrp'---, Roi Wi nd s~.. Wind Dir Gusts I I Wind Station Pn,ss P r@SS ! (LSTI ~yo;e Condi ons bllity AU I AW I MW (F) (C) (F) (C) (F) (C) H,y.m (MPH) (Deg) (MPH) (lnHg) Te°nd o.oa 19 19 0051 0100 7 4 CLR:00 10.00 9.84 27 27 -2.8 ·2,15 22 22 -5.6 -5.6 7 7 -13.9 -13 .9 43 43 ,, 11 010 010 18 30.51 30.50 5 5 +0,01 +0.01 30,53 30.53 FM-15 FM-12 30.54 '•;-- 19 0151 7 CLR:00 10.00 27 .... -2.0 22 -S.6 • -13.3 45 7 010 30.52 30.54. FM-is 0.00 '30.55 ••• 19 0251 7 CLR:00 10.00 27 22 -S.6 -13,3 45 10 010 30.50 30.53 FM-15 0',00' 30.53- 19 0351 7 CLR:00 10.00 26 -3.3 21 -6, 1 -13.3 46 9 360 30.52 3 -0.01 30.5-i FM-15 o.oo · 30.55 ~ 19 0400 4 9.94 25 -3.3 21 -6.1 -13.3 48 9 360 30.51 3 -0.01 30.54 FM-12 19 19 0451 0551 7 7 CLR:00 CLR:00 10.00 10.00 26 25 -3.3 -3.9 21 20 -6.1 -6.7 • 7 -13.3 ·13.9 48 ◄6 • 7 020 010 30.53 30.55 30.5'! 30.57 FM-15 FM-15. 0.00 0.00 30.56' 30:58 19 0651 7 SCT:04 250 10.00 25 -3.9 20 -6.7 8 •13.3 48 s 0 10 30.S6 1 --0.04 30.5S FM-15 0.00 . 30.59 _, 19 19 0700 0751 4 7 BKN:07 250 9 .84 10.00 25 27 -3.9 -2.e 20 21 -6.7 -6.1 • 6 -13.3 ·14.4 .,◄• 5 7 010 020 30.55 30.57 1 --0.04 30.58 30.59 FM--12 FM-15 -- 0.00 · 3-0.60 ,. 19 19 19 0851 0951 1000 1051 7 7 4 7 BKN:07 250 BKN:07 250 BKN:0725<1 10.00 10.00 9.94 10.00 27 29 29 30 -2.8 -1.7 •1 .7 -1 . 1 22 23 23 25 -5.6 -5.0 -S.O -3.9 7 •• 12 -13.9 -1 3.3 -13.3 -11 . 1 .,43 ., 47 3 3 3 • 050 040 040 050 30.58 30.57 30.56 30,55 0 9 ..0.01 +0.01 30.61 30,60 30.60 30.57 FM-15 FM-15 FM-12 FM-15 0.00· 0.00 0.00 ) 30.61, I 30.ea 1 30.58 , (see id.). The precipitation total on February 19, 2016 from 1 a.m. until 10:51 a.m. was “0.00” inches (id.). Neither was there any precipitation record for the day before, February 18, 2016. Meanwhile, the climatological report from Central Park also shows, in relevant part, that there was no precipitation at all on the morning of February 19, 2016: 451898/2018 MOREL, FRANCISCO vs. NEW YORK CITY TRANSIT Page 2 of 4 Motion No. 002 2 of 4 [* 2] ll!l!v.s. Ot:lpartment of Commerce Na ·onal Centers for Environmental lnfcnna1ion N21tiona! Oceanic & Atmospheric Admln!stration Local Climatologica l Data 151 Pa.ton Avenue National Environmental Satemte. Data, and lnforma1icn Service Hourly Observations Asheville, North Carolina 28801 February 2016 Current location: E lev: 140 ft Lat 40.7790• N Lon: 7S.9593" W Generated on 05/10/2024 Slation: NY CITY CENTRAL PARK, NY US WBAN :94728 (ICAO:KNYC} ~ Time ~ta- Sk Visl- Weather Type (see doc:umentation) O~e !~lb Wf!~~lb Det~~!nt Rel Wind Wind W ind Station Press t • {LST} Tbyopne Condmons bllity f-- - -- - -- - --+----.-~--+---,~-f--r'----1 Hum S~ee Dir Gusts Press (lnHg) Te.nd AU I AW I MW (F) (C) (F) (C) (f) (C) % (MPH) (De g) (MPH) 19 0151 6 CLR:00 10.00 26 -3.3 21 -6.1 5 ·15.0 40 30.39 30.54 FM-15 0.00 30.56 19 0251 7 CLR:00 10.00 25 -3.9 20 -6.7 5 -15.0 42 6 050 30.57 30.52 FM-15 0.00 30.54 10 19 0351 0451 7 7 CLR:00 CLR:00 10.00 10.00 25 24 .... -3.9 20 19 -6.7 -7.2 7 6 -13.9 -14.~ 46 46 3 5 360 VR8 30.39 30.4 1 2 -0.01 30.54 30.55 FM-15 FM-15 0.00 0.00 30.56 30.58 10 19 0551 0651 7 7 CLR:00 CLR:00 ,o.oo 10.00 25 25 -3.9 -3.9 20 20 -6.7 -6.7 6 7 -1 4 ."4 -13 .9 44 46 •• 020 030 30.42 30.42 1 -0.04 30.57 30.57 FM-1 5 FM-15 0.00 0.00 30.59 30,59 19 0751 7 CLR;OO 10.00 27 -2.8 21 -6. 1 3 -16.1 35 5 VRB 30.4.. 30.58 FM-15 0.00 30.61 19 0/lSI 7 CI..R:00 10.00 29 • 1.7 22 ·5.6 4 -15.6 34 3 VRB 30.45 30.60 FM-15 0.00 30.62 10 0'51 7 CLR:00 10.00 31 -<>.• 2, -4.4 6 -14.~ 35 • VRB 30.43 0 -0.01 30.58 FM-15 0.00 30.60 19 1051 7 CLR:00 10.00 32 0.0 25 ·3.9 • ·13.3 36 0 000 3042 30,56 FM-15 0.00 30.59 (see id.). The precipitation total on February 19, 2016 from 1 a.m. until 10:51 a.m. was “0.00” inches (id.). Neither was there any precipitation record for the day before, February 18, 2016. Because plaintiff testified that it was snowing at the time of the incident, whereas certified climatological reports showed that it was neither snowing nor had snowed on the day of the incident and the day before, defendants’ own submissions raise an issue of fact as to whether the storm-in-progress doctrine applies (Velasquez v New York City Tr. Auth., 237 AD3d 557, 558 [1st Dept 2025]; see also Abramo v City of Mount Vernon, 103 AD3d 760, 761 [2d Dept 2013]; Howard v J.A.J. Realty Enters., 283 AD2d 854, 855-856 [3d Dept 2001]; see also Mosley v General Chauncey M. Hooper Towers Hous. Dev. Fund Co., Inc., 48 AD3d 379, 380 [1st Dept 2008]). Given these conflicts, so much of defendants’ motion for summary judgment that is based on the storm in progress doctrine must be denied, regardless of the sufficiency of plaintiff’s opposition papers (Velasquez, 237 AD3d at 558). In arguing that defendant New York City Transit Authority (NYCTA) “acted as a reasonable landowner,” defendants rely heavily on the deposition of NYCTA employee Rudi Livingstone, who testified about the NYCTA’s general snow and ice remediation procedures (defendants’ exhibit G in support of motion [NYSCEF Doc. No. 31]). However, Livingstone was unable to testify as to when the subject staircase “was last inspected or cleaned before plaintiff fell” (Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 421 [1st Dept 2011]). In fact, Livingstone could not recall whether he was assigned to work at the subject station in February 2016 (Livingstone deposition at 13, lines 6-16). Thus, the NYCTA unable to establish as a matter of law that it lacked notice of the allegedly slippery condition (Vella v UBM Holdings, Inc., 216 AD3d 1051, 1053 [2d Dept 2023] [“Mere reference to general cleaning and inspection practices is insufficient to establish a lack of constructive notice”]). Defendants further argue that that the rock salt used on the subway staircase was open and obvious, did not create a dangerous condition, and was not inherently dangerous. Defendants rely heavily on Rivers v Villford Realty Corp., where the plaintiff “slipped on calcium chloride, a substance used to treat and prevent ice conditions, while exiting her apartment building” (106 AD3d 492, 492 [1st Dept 2013]). In that case, the Appellate Division, First Department, affirmed the lower court’s grant of summary 451898/2018 MOREL, FRANCISCO vs. NEW YORK CITY TRANSIT Page 3 of 4 Motion No. 002 3 of 4 [* 3]