Small v. Coney Island Site 4A-1 Houses, Inc.

In an action to recover damages for wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated August 8, 2003, which granted the defendants’ motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. On January 15, 1999 at approximately 8:00 a.m., the plaintiffs decedent was found lying on the floor of the partially exposed hallway of the apartment building where he resided. There was ice on the walkway where the decedent was discovered. Hail, snow, freezing rain, and rain began to fall in the early morning hours of January 14, 1999 and continued to fall until at least 9:00 a.m. on January 15, 1999. After being transported to the hospital, the decedent was pronounced dead at 9:51 a.m. An autopsy report listed the cause of death as “blunt impact head trauma.” The autopsy report also revealéd that the decedent had an enlarged heart and had recently abused cocaine. The plaintiff commenced the instant action to recover damages for wrongful death. Thereafter, the defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the motion. We affirm. Assuming that the alleged icy condition was the proximate cause of the decedent’s death, the defendants made a prima [742] facie showing of entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]) by submitting evidence that there was a storm in progress at the time of the incident (see Dowden v Long Is. R.R., 305 AD2d 631 [2003]; Wines v City of New York, 283 AD2d 639, 640 [2001]; Smith v Leslie, 270 AD2d 333, 334 [2000]). In opposition, the plaintiff failed to raise a triable issue of fact. “[W]here, as here, the allegation is that the icy surface was created sometime before the storm, it is [the] plaintiffs burden to establish ‘that the precipitation from the storm in progress was not the cause of the incident’ ” (Parker v Rust Plant Servs., Inc., 9 AD3d 671, 672-673 [2004], quoting Campagnano v Highgate Manor of Rensselaer, 299 AD2d 714, 715 [2002]). The plaintiffs evidence that ice had been present for a “day or two before [the incident]” was insufficient to raise a triable issue of fact as to whether the decedent allegedly fell on “old” ice (see Simmons v Metropolitan Life Ins. Co., 84 NY2d 972, 973-974 [1994]; Wines v City of New York, supra at 640; Chapman v City of New York, 268 AD2d 498 [2000]). To say that “old” ice caused the subject ice patch as opposed to the storm in progress would require a jury to resort to conjecture and speculation in order to determine the cause of the incident (see Simmons v Metropolitan Life Ins. Co., supra; see generally Taylor v New York City Tr. Auth., 19 AD3d 478, 479 [2005]). Moreover, contrary to our dissenting colleague’s view, the plaintiff’s assertion that the subject hallway had a drainage problem was also insufficient to raise a triable issue of fact. While the dissent relies upon the opinion of the plaintiff’s engineer, who stated, inter alia, that the drains on the subject walkway were insufficient to prevent the accumulation of water, the engineer’s report is dated January 8, 2003, approximately three years after the incident. Significantly, the engineer did not indicate in his report when he inspected the drains. Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint. Krausman, J.P., Mastro and Rivera, JJ., concur.