Opinion
March 5, 1979
In a negligence action to recover damages for personal injuries, etc., defendant Don-Len Plaza Diner, Inc., appeals from a judgment of the Supreme Court, Rockland County, entered December 8, 1977, which is in favor of plaintiffs and against it, upon a jury verdict. Judgment reversed, on the law, and new trial granted, with costs to abide the event. Plaintiff Harriet Hoffman slipped and fell on ice outside appellant's diner at approximately 6:15 P.M. on February 3, 1972. The testimony of plaintiffs' witnesses revealed that rain and sleet were falling around the time of the mishap. The statistics of a weather station established that rain, snow, sleet and hail fell from approximately 3:00 P.M. to 11:00 P.M. on that date. Under these circumstances, it was error for the trial court to refuse to charge the jury with respect to the nature of appellant's duty to clear away accumulations on the walk during the progress of a storm (see Falina v. Hollis Diner, 281 App. Div. 711, affd 306 N.Y. 586). O'Connor, J.P., Gulotta, Margett and Mangano, JJ., concur.