Summary
affirming summary judgment in defendant's favor because duty to clear sidewalk does not commence until a reasonable time after storm ends
Summary of this case from Feigles v. Costal Lumber Co.Opinion
April 14, 1994
Appeal from the Supreme Court, Saratoga County (Brown, J.).
On February 2, 1989, plaintiff slipped and fell on an icy sidewalk while exiting defendant's store in the City of Mechanicville, Saratoga County, in the vicinity of the ramp providing access to the handicapped. At the time of the accident, and for at least 1 1/2 hours prior thereto, a storm with freezing rain and sleet had been in progress. Defendant had its employees spread sand and salt around the building, but the continuing precipitation rendered those efforts ineffective. Defendant moved for summary judgment dismissing the complaint in this personal injury action contending that, as a matter of law, it had violated no duty of care to plaintiff by failing to correct the icy condition prior to the end of the storm. Plaintiff has appealed from the order of Supreme Court which granted the motion. We affirm.
A party in possession or control of real property has a reasonable period of time after the cessation of a storm in which to take protective measures to correct storm-created hazardous ice and snow conditions (Porcari v S.E.M. Mgt. Corp., 184 A.D.2d 556, 557; Drake v Prudential Ins. Co., 153 A.D.2d 924, 925; Marcellus v Littauer Hosp. Assn., 145 A.D.2d 680, 681; see also, Gonzalez v City of New York, 168 A.D.2d 541, lv denied 78 N.Y.2d 851). The lapse of reasonable time does not occur while a storm is in progress (Rothrock v Cottom, 115 A.D.2d 242, lv denied 68 N.Y.2d 601; Valentine v City of New York, 86 A.D.2d 381, 384, affd 57 N.Y.2d 932; Moorhead v Hummel, 36 A.D.2d 682, 683). Plaintiff's argument that the commercial nature of a convenience store should create a heightened duty is unpersuasive and she has offered no authority for that proposition. The general principle set forth above has been applied to similar situations of slip and fall accidents at commercial establishments which occur while a storm is still in progress (Newsome v Cservak, 130 A.D.2d 637 [shopping mall ramp]; Hoffman v Don-Len Plaza Diner, 68 A.D.2d 880 [diner]; Falina v Hollis Diner, 281 App. Div. 711, affd 306 N.Y. 586 [diner steps]). We see no basis to enlarge defendant's duty to exercise reasonable care over its property under these circumstances. The standard to be applied recognizes the realities of problems caused by winter weather (see, Goldman v State of New York, 158 A.D.2d 845, appeal dismissed 76 N.Y.2d 764; Marcellus v Littauer Hosp. Assn., supra, at 681; Denning v Pioneer Trailer Sales, 20 A.D.2d 846, 847) which have been demonstrated were present here.
We find no merit to plaintiff's remaining contention of a defect in the design of the sidewalk which was neither alleged in her pleadings nor raised by plaintiff before Supreme Court.
Cardona, P.J., Mercure, White and Casey, JJ., concur. Ordered that the order is affirmed, with costs.