Frank Lovece in Building Operations on December 21, 2012
On that long-ago morning, Toro was allegedly injured when he slipped on ice on the sidewalk on the 150th Street side of the building, at 150-38 Union Turnpike in Flushing, and fell onto a metal grate. He claimed the condo was negligent by failing to keep the sidewalk free of ice.
"...Some Say in Ice"
Was there ice? The condo said no. Jonny Roman, a handyman and porter there, testified in a deposition that he did not see Toro fall but responded to a call about it. He had been covering the door for the doorman, and left the post for two minutes to see that Toro had "fallen down" on the sidewalk. Roman said he "just looked at" him and "went back immediately because I couldn't leave the door of the lobby." The fall not appearing serious, he didn't help Toro up or call an ambulance.
Roman said he saw "nothing" when asked if there were ice, but admitted he didn't specifically check, saying, "[W]e would clean the snow around there. … That place is always clean," and insisted, "[T]here was no snow, there was no ice." That didn't satisfy the court, which said Roman "did not testify as to when the last snow or ice removal work with regards to the sidewalk location in question had been performed prior to the date of the accident, but rather testified to the snow removal procedures at the condominium."
The court also noted Roman testified that the salt they spread "dilutes or melts the ice and [the ice] becomes water," but that he didn't know if anyone checked whether that water later became ice again if the temperature went below freezing. And crucially, the court noted, not only were there no porter or superintendent logs as to when snow or ice might have been cleared, but, "The copies of the security logbook entries offered by defendant Condominium also do not indicate when the last time snow or ice removal was performed with respect to the sidewalks prior to the time of the accident."
Weather Goest Thou?
The condo tried the defense of weather reports, which said there was no snowfall or precipitation on the day of the accident, and that the last date prior to the accident when there was any significant snowfall was two entire days earlier.
Unfortunately for the condo, it didn't seem to notice that those same meteorological records indicated that the temperature ranged from as low as 17°F to no higher than 31°F in that three-day period — and what with those freezing temperatures and no log entries, the court concluded that the condo "failed to show that snow and ice removal efforts were performed during the period following the February 14, 2007 snowfall and the time of the accident, and that the snow could not have melted as a consequence of application of salt, and then refroze recreating an icy condition during such period."
Nine days ago, on Dec. 12, the court turned down the condo's request for summary judgment to end the case in its favor.
The case continues, but the fact remains: Courts prefer documentation to memory. Condo associations and co-op boards need to instruct their staffs that when you shovel snow and ice, keep a logbook record. And in the meantime, thank goodness for The Four-Hour Rule.
Engage, enrage, ask questions and give answers with your community of board members. Submit your questions and comments here!
Co-op and condo board business broken down into bite-sized bits - 2 stories each week. Read now on all digital devices.