FILED: NEW YORK COUNTY CLERK 09/16/ :12 PM INDEX NO /2014 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/16/2015

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1 FILED: NEW YORK COUNTY CLERK 09/16/ :12 PM INDEX NO /2014 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/16/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LEAH TAMBURINO, vs. Plaintiffs, MOTION FOR SUMMARY JUDGMENT JP MORGAN CHASE BANK, N.A., doing business as CHASE MANHATTAN BANK and CHASE MANHATTAN BANK. Index No.: Defendants. PLEASE TAKE NOTICE, that upon the annexed affirmation of CHARLES J. GAYNER, ESQ., dated September 16, 2015 and the exhibits annexed thereto, the undersigned will move this Court on October 13, 2015 at the Courthouse located in Room 130, Submissions Part at 60 Centre Street, New York, at 9:30 a.m. in the forenoon or as soon thereafter as counsel can be heard, for an Order pursuant to CPLR 3212 granting summary judgment to Defendants, JP MORGAN CHASE BANK, N.A. and CHASE MANHATTAN BANK, and dismissing the Complaint of Plaintiff and granting such other further relief as this Court deems just and proper. PLEASE TAKE FURTHER NOTICE that pursuant to CPLR 2214(b) answer papers, if any and notice of cross-motion, if any, are to be served at least seven (7) days before the return date of this motion. Dated: New York, New York September 16, 2015 EHRLICH GAYNER, LLP By: Charles J. Gayner, Esq. 150 Broadway, Suite 808

2 TO: Pianko Law Group, PLLC Attorneys for Plaintiff 30 Broad Street, 14 th Floor New York, New York New York, NY (212)

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LEAH TAMBURINO, vs. Plaintiffs, JP MORGAN CHASE BANK, N.A., doing business as CHASE MANHATTAN BANK and CHASE MANHATTAN BANK. AFFIRMATION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Index No.: Defendants. CHARLES J. GAYNER, an attorney duly admitted to practice law before the courts in the State of New York and a partner with Ehrlich Gayner LLP, counsel to defendants JP MORGAN CHASE BANK, N.A. and CHASE MANHATTAN BANK, (hereinafter collectively referred to as CHASE ) sets forth as follows, under the penalties of perjury and upon information and belief: 1. This affirmation is submitted in support of the within motion for an order pursuant to C.P.L.R. section 3212 granting summary judgment in favor of defendants CHASE. 2. This matter sounds in personal injury. A copy of the plaintiff s complaint and defendants answer are attached hereto collectively as Exhibit A. SUMMARY ARGUMENT 3. The plaintiff claims to have slipped on snow inside a CHASE bank ATM branch. The accident was on a Sunday, when the branch was closed. The plaintiff admits to a large snowstorm in progress, that there was a mat present, that her feet were

4 wet and that she actually fell on the mat. Video produced of the time and place of the accident fail to show the plaintiff present inside the ATM. LEGAL ARGUMENT 4. In Pippo v City of New York 43 A.D. 3d 303 (1 st Dept 2007), the Court held that all reasonable measures that are to be taken to remedy a dangerous condition are suspended while there is a storm in progress. Even if there were no storm in progress, the tracked in water defense applies. In Amsel v. New York Convention Center, 60 A.D.3d 584 (2009), the Court held that reasonable steps should be taken for tracked in water and that would include a mat. 5. The courts of this state have repeatedly held that a property owner's general awareness that an area becomes wet as a result of inclement weather does not constitute constructive notice of the specific condition that gave rise to an accident (see e.g. Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005], affg 21 AD3d 735 [2005]; Asante v JP Morgan Chase & Co., 93 AD3d 429 [2012]; Rouse v Lex Real Assoc., 16 AD3d 273, 274 [2005] ["that rainwater was being tracked into the lobby does not constitute notice of a dangerous condition"]). The courts of this state have also repeatedly held that, at a time of inclement weather, a property owner has no duty either to continuously mop up moisture tracked onto its floors by people entering from outside or to cover its entire floor with mats (see e.g. Miller v Gimbel Bros., 262 NY 107 [1933]; Thomas v Boston Props., 76 AD3d 460, 461 [2010] ["the law imposes no obligation to take continuous remedial action to remove moisture accumulating as a result of pedestrian traffic"]; GonzalezJarrin v New York City Dept. of Educ., 50 AD3d 334, 335 [2008] [property owners "were under no obligation to cover the entire floor with mats

5 and to continuously mop up all tracked-in water'"], quoting Garcia v Delgado Travel Agency, 4 AD3d 204, 204 [2004]; Meza v Consolidated Edison Co. of N.Y., 50 AD3d 452 [2008]; Gibbs v Port Auth. of N.Y., 17 AD3d 252, 255 [2005] [property owner "did not have an obligation to provide a constant remedy to the problem of water being tracked into a building in rainy weather"]; Keum Choi v Olympia & York Water St. Co., 278 AD2d 106, 107 [2000]; Hussein v New York City Tr. Auth., 266 AD2d 146, [1999]; Negron v St. Patrick's Nursing Home, 248 AD2d 687 [1998]; Kovelsky v City Univ. of N.Y., 221 AD2d 234 [1995]). FACTUAL ARGUMENT 6. The accident occurred on December 15, 2013, a Sunday at about 2:15 p.m. (Tamburino Tr. 20; reference is to the deposition transcript of the plaintiff which is attached hereto as Exhibit B ). The accident occurred at the Chase Bank on Broadway between 72 nd and 73 rd Streets in Manhattan inside the ATM (Tamburino Tr , 29). 7. The plaintiff confirmed that there had been a very huge snowstorm and it had been snowing at the time. Q. What was the weather like at the time? A. It was snowy. Q. It was snowing at the time? A. Um, we had a very huge snowstorm, so yet, it was snowing at the time. Q. And in terms of your best description based upon your observations, at that time of the accident, was it snowing heavy, was it snowing light?

6 A. It was snowing heavy. (Tamburino Tr. 25) 8. The plaintiff testified that there was snow on the ground as she was walking to Chase (Tamburino Tr. 26). There was a lot of snow outside (Tamburino Tr. 29). She added that it was the first heavy snowstorm and she had to climb over big chunks of snow outside (Tamburino Tr. 30). 9. The accident happened after the plaintiff took a couple of steps into the ATM (Tamburino Tr. 33). She estimated that she took about 2-4 steps into the ATM lobby (Tamburino Tr. 34). Just as she entered, she noticed a rubber mat in place (Tamburino Tr. 35). This mat was considered of medium size and was larger thant the space around me (Tamburino Tr. 35). 10. The plaintiff testified that she was actually on the mat when she fell: Q. When your accident happened, were you on the mat? A. Yes. (Tamburino Tr. 37) 11. After the accident the plaintiff performed her transaction, took her groceries and left (Tamburino Tr. 43). The plaintiff noticed that there was snow and slush in the area of the mat but admitted to her own shoes not being dry and that there snow was likely tracked in from other people. (Tamburino Tr ). She offered the following specific testimony Q. The snow and slush, do you know if any of it came from your shoes when you came inside?

7 A. Being that I came from outside, my shoes couldn t have been dry, so yes, my slush mixed with the mat s slush. (Tamburino Tr. 45). 12. Finally, a surveillance video of the ATM lobby at the time of the accident has been exchanged. The plaintiff is not seen inside the ATM at all. There is no factual dispute in this regard. As to annexing the video, I cannot through the efile system and can present same at the time of oral argument, if necessary. Considering the above testimony, the submission of a video might be irrelevant. CONCLUSION 13. The plaintiff testified that on this particular Sunday, it was snowing heavily at the time of the accident, that it had been snowing for two days, that she tracked in snow/slush, that there was a mat present and that she actually fell while on the mat. 14. In consideration of the testimony and the applicable law as to storm in progress and tracked in water, the matter should be dismissed. WHEREFORE, it is respectfully requested that the relief be granted in accordance with the above argument. Dated: September 16, 2015 New York, NY EHRLICH GAYNER, LLP By: Charles J. Gayner, Esq. 150 Broadway, Suite 808 New York, NY (212)

8 Index No.: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LEAH TAMBURINO, vs. Plaintiffs, JP MORGAN CHASE BANK, N.A., doing business as CHASE MANHATTAN BANK and CHASE MANHATTAN BANK. Defendants. NOTICE OF MOTION and AFFIRMATION IN SUPPORT OF MOTION and EXHIBITS EHRLICH GAYNER, LLP By: Charles J. Gayner, Esq. 150 Broadway, Suite 808 New York, NY (212)

9 AFFIRMATION OF SERVICE Charles J. Gayner, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, sets forth as follows. I am over 18 years of age. I am not a party herein. I served/am serving via Efile the within MOTION, AFFIRMATION and EXHIBITS to: TO: Pianko Law Group, PLLC Attorneys for Plaintiff 30 Broad Street, 14 th Floor New York, New York Charles J. Gayner, Esq.