### Baptiste v New York City Tr. Auth. 2024 NY Slip Op 32401(U) July 12, 2024 Supreme Court, New York County Docket Number: Index No. 151283/2019 Judge: Denise M. Dominguez 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."'' .----- =-+4Ef,' T__,,...m; .+ .- NYSCEF DOC. NO. 97 {Pf

--- l C""" INDEX NO. 151283/2019 RECEIVED NYSCEF: 07/12/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ PART Justice

---------------------------------------------------------------------------------X INDEX NO. 151283/2019

JAMALCO BAPTISTE 35

MOTION SEQ. NO. ------=-00-=--=3'------- Plaintiff
-vNEW YORK CITY TRANSIT AUTIIORITY, METROPOLITAN TRANSPORTATION AlJTIIORITY Defendants

---------------------------------------------------------------------------------X DECISION AND ORDER ON MOTION

The following e-filed documcnts, listed by NYSCEF documentnumber (Motion 003) 86, 87, 88, 89, 90, 91 , 92, 93, 94, 95 were read on this motion to/for REARGCMENT/RECONSIDERATION

--- forthe reasons that follow, Plaintiffsmotion to reargue this Court's decision that granted summary judgment to Defendants, New York City Transit Authority and \ttctropolitan Transportation Authority (Transit) is denied. Inthis slip and fall personal injury matter, a summaryjudgmentmotion in favor ofTransit \..,as granted on '.\Jovember 20, 2023. Plaintiffnow timely moves for leave to reargue and upon granting leave argues that Transit's motion should have been denied as Transit did not properly establish the snow inprogress doctrine. Plaintiffspecifically alleges that Transit did not submit a certified weather report, did not establish when the area was last cleaned or inspected, and that Transit's own witness did not corroborate the weather conditions. Pursuant to CPLR 2221 [d] a motion to reargue a prior decision is granted only upon a showing that the court overlooked or misapprehended the facts orthe law or mistakenly arrived at its earlier decision (CPLR 2221 [dJ; see 

### William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22 

## lP1 Dept 1992]).

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### [* 1]NYSCEF DOC. NO. 97 INDEX NO. 151283/2019 RECEIVED NYSCEF: 07/12/2024
Regarding the storm in progress doctrine, a property owner or a public entity such as Transit, is not liable for injuries sustained during falling snow orprecipitation norfor a reasonable time thereafterthe storm, as property owners do nothave a duty to remedy such conditions during
a storm (Valentine v. City ofNew York, 86 AD2d 381 [1 ' 1 Dept 1982]). further the storm in progressdoctrine has beenheld to apply to both exteriorand interior walkways, includingwet and slippery station platfonns, subway station floors and subway station stairways 

### (see Abraham 

### v. PortAuth. (~f,Vevr York & J.lew Jersey, 29 AD3d 345 [1 stDept 2006], see alsoSolazzo v. 

### Ne1,1· York City Transit Auth., 21 J\D3d 735 [

### 1'1 Dept 2005]; Kinberg v. New York City Transit Auth., 99 AD3d 583 

### IP1 Dept 2012]). "[A]s it is unreasonable to require the Transit Authority to keep the floors ofsubwaycarscleananddry during ongoing storms, whenthe subway cars are continuously filled with wet commuters... similarly, a station floor cannot be effectively kept dry in such circumstances." 

### (Hussein v. 

### ,Vew York City 

### Transit Auth., 266 J\D2d 146 [1 st Dept 19991). Here, the Court considered all the evidence submitted, including the notice ofclaim filed within a month after the accident, Plaintiff's statutory hearing testimony held less than three (3) months after the accident, Plaintiffs deposition testimony held less than two (2) years after the accident, photographs, and the uncertified weatherreports to concludethatonthe date and time of the accidentthe snowinprogress doctrine applied as snowwas falling andPlaintin: apoliceofficer in pursuit ofa criminal suspect, slipped and fell on a wet step ofa stairway at the subject subway station. In addition, Plaintiffas an oiiicer ofthe law established through his sworn testimonies at the statutory hearing and deposition that it was snowing at the time ofhis accident. This Court also considered Plaintiffs opposing aiTidavit. In opposing Transit's summary judgment motion. Plaintiff submitted an af!idavit dated four (4) years ailer the alleged accident (NYSCEF Doc. 71). There Plaintiffchanged his priortestimony and asserted that he did not recall

151283/2019 BAPTISTE, JAMALCO vs. NEW YORK CITY TRANSIT Motion No. 003

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### [* 2]NYSCEF DOC. NO. 97 INDEX NO. 151283/2019 RECEIVED NYSCEF: 07/12/2024

whetheritwas snowing atthe time ofhis accident and thatthe snow/ice had been present for quite
some time. Upon reviewing it, this Court found it insufficient to raise a material question offact. As an affidavit by an interested party such as a plainti11~ that contradicts prior sworn statements docs not create an issue of fact sufficient to defeat a properly supported motion for swnmary judgment (Harty v. Lenci, 294 AD2d 296 [lst Dept2002]; seeAlston v. Ellioff, 159 AD3d 575 (1st Dept 2018]). Instead, at most, it creates a feigned issue offact (id.) Nor did the testimony by Transit's witness \vho did not recall the weather conditions or when the area was last inspected or cleaned raise material issues of facts warranting denial of Transit's motion. Transit's Cleaner, Jennifer Johnson, was deposed approximately three (3) years after the accident. She testified that prior to the deposition she was not aware ofany accident, nor the weather conditions and did not recall being at the subject subway station until she reviewed a log-book at the deposition (NYSCEf Doc. 75). Consequently, this testimony by a non-party, who does not have an interest in the outcome ofthis action, given approximately three (3) years after the accident and during the Covid-19 pandemic, did not outweigh Plaintiffs multiple testimonies given closer in time 

### in which he attested that snow was falling on the date ofhis accident. Nor does itoutweight Plaintiffsnotice ofclaim filed less than a monthafterthe accidentalso attesting to the "presence ofsnow" (NYSCEf Doc. No 27). Regarding the uncertified National Oceanic and Atmospheric Admiration (NOAA) report, this Court agrees it would have been a better practice for Transit to submit a certified report. However, in light ofthe additional evidence submitted, the uncertified report from a national weather agency was not fatal (see e.g. Solazzo, 21 AD3d 735). The copy ofthe NOJ\A report reflected weatherreadings from Central Park in Manhattan for the month ofNovember and for the date ofthe subject accident. Notably this accident allegedly occurred at the 59th Street Columbus

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### [* 3]NYSCEF DOC. NO. 97 INDEX NO. 151283/2019 RECEIVED NYSCEF: 07/12/2024

Circle subway station and this Court takesjudicial notice to its proximity to Central Park. The NOAA report also provided detailed data regarding temperature and precipitation readings throughout the day on November 15, 2018. As per the NOAA report, over 6 inches ofsnow fell, and the temperature ranged from 40°F to 28°F on November 15, 2018. (NYSCEF Doc. 62). In contrast, Plaintiffs uncertified weather report stating that there was no precipitation onNovember 15, 2018 did not provide details nor its source (NYSCEF Doc. 76). Nor did Plaintiffor Plaintiffs counsel make any attempt to identify or explain in their affidavits and affirmations the source of thedocument, preventingthis Court from eveninferringany truthfulness. Thus, Plaintilrsweather report was inadmissible and feign in worthiness to raise a material question offact. Accordingly, upon reconsideration, Plaintiffhas not made a showingthatthis Court'sprior decision overlooked ormisapprehended facts orexisting law. Therefore, it is hereby ORDERED that Plaintiffs motion for leave to rearguc is denied; and it is further ORDERED that within 20 days from the entry ofthis order, Plain6ffshall serve a copy of this order with notice ofentry upon all parties and upon the Clerk ofthe Courtin accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures .fhr ElectronicallyFiled Cases (accessible at the "E-Filing" page on the court'swebsite).

7/12/2024

DATE CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE: CASE OISPOSED GRANTED 

# 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN
151283/2019 BAPTISTE, JAMALCO vs. NEW YORK CITY TRANSIT Motion No. 003
4 of 4 NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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