Opinion
2012-07-5
Robert COTTER, respondent, v. BROOKHAVEN MEMORIAL HOSPITAL MEDICAL CENTER, INC., appellant.
Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton of counsel), for appellant. Flanzig & Flanzig, LLP, Mineola, N.Y. (Daniel Flanzig of counsel), for respondent.
Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton of counsel), for appellant. Flanzig & Flanzig, LLP, Mineola, N.Y. (Daniel Flanzig of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Rebolini, J.), dated February 25, 2011, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
“Under the so-called ‘storm in progress' rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” ( Marchese v. Skenderi, 51 A.D.3d 642, 642, 856 N.Y.S.2d 680;see Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 810 N.Y.S.2d 121, 843 N.E.2d 748;Weller v. Paul, 91 A.D.3d 945, 947, 938 N.Y.S.2d 152). However, even if a storm is ongoing, once a property owner elects to remove snow, it must do so with reasonable care or it could be held liable for creating or exacerbating a natural hazard created by the storm ( see Petrocelli v. Marrelli Dev. Corp., 31 A.D.3d 623, 817 N.Y.S.2d 913;Salvanti v. Sunset Indus. Park Assoc., 27 A.D.3d 546, 813 N.Y.S.2d 110;Chaudhry v. East Buffet & Rest., 24 A.D.3d 493, 808 N.Y.S.2d 239).
Here, the defendant property owner failed to establish, prima facie, that it was entitled to judgment as a matter of law dismissingthe complaint based on the storm in progress rule. In support of its motion, the defendant submitted an affirmed report of a meteorologist who opined that a storm was in progress at the time the plaintiff allegedly slipped and fell on ice. However, copies of the records upon which the meteorologist relied in forming his opinion were not attached to the report, and thus, the report has no probative value ( see Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 754 N.Y.S.2d 195, 784 N.E.2d 68;Romano v. Stanley, 90 N.Y.2d 444, 451, 661 N.Y.S.2d 589, 684 N.E.2d 19;Daniels v. Meyers, 50 A.D.3d 1613, 857 N.Y.S.2d 403;Schuster v. Dukarm, 38 A.D.3d 1358, 831 N.Y.S.2d 619). To meet its prima facie burden, the defendant could not rely on its submission of such records for the first time in its reply papers ( see David v. Bryon, 56 A.D.3d 413, 414–415, 867 N.Y.S.2d 136;Rengifo v. City of New York, 7 A.D.3d 773, 776 N.Y.S.2d 865;Voytek Tech. v. Rapid Access Consulting, 279 A.D.2d 470, 471, 719 N.Y.S.2d 112).
The defendant also did not make a prima facie showing that the snow removal efforts it undertook did not create or exacerbate the hazardous condition upon which the plaintiff allegedly fell ( see Robles v. City of New York, 56 A.D.3d 647, 868 N.Y.S.2d 114;Salvanti v. Sunset Indus. Park Assoc., 27 A.D.3d 546, 813 N.Y.S.2d 110;Chaudhry v. East Buffet & Rest., 24 A.D.3d 493, 808 N.Y.S.2d 239).
Since the defendant did not sustain its prima facie burden, we need not consider the adequacy of the plaintiff's papers submitted in opposition ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;Lester v. Ackerman, 82 A.D.3d 847, 847–848, 918 N.Y.S.2d 376).
Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.