Opinion
2014-07-16
Jaclyn RABINOWITZ, etc., appellant, v. Lenore MARCOVECCHIO, respondent.
Silverstein & Kahn, P.C., Huntington, N.Y. (Larry Silverstein and Larry Warshaw of counsel), for appellant. Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (James M. Carman, Peter F. Breheny, and Christopher G. Doering of counsel), for respondent.
Silverstein & Kahn, P.C., Huntington, N.Y. (Larry Silverstein and Larry Warshaw of counsel), for appellant. Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (James M. Carman, Peter F. Breheny, and Christopher G. Doering of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated March 26, 2013, which granted the defendant's renewed motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
“A defendant may be held liable for a dangerous condition on its premises caused by the accumulation of snow or ice upon a showing that it had actual or constructive notice of the condition, and that a reasonably sufficient time had lapsed since the cessation of the storm to take protective measures” ( Sabatino v. 425 Oser Ave., LLC, 87 A.D.3d 1127, 1128, 930 N.Y.S.2d 598;see Roofeh v. 141 Great Neck Rd. Condominium, 85 A.D.3d 893, 893–894, 925 N.Y.S.2d 165;Robles v. City of New York, 255 A.D.2d 305, 306, 679 N.Y.S.2d 340). “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;McCurdy v. KYMA Holdings, LLC, 109 A.D.3d 799, 971 N.Y.S.2d 137;Smith v. Christ's First Presbyt. Church of Hempstead, 93 A.D.3d 839, 840, 941 N.Y.S.2d 211).
On a motion for summary judgment, the question of whether a reasonable time has elapsed may be decided as a matter of law by the court, based upon the circumstances of the case ( see Valentine v. City of New York, 57 N.Y.2d 932, 933–934, 457 N.Y.S.2d 240, 443 N.E.2d 488;Sie v. Maimonides Medical Center, 106 A.D.3d 900, 965 N.Y.S.2d 562;Lanos v. Cronheim, 77 A.D.3d 631, 909 N.Y.S.2d 101). A lull in the storm does not impose a duty to remove the accumulation of snow or ice before the storm ceases in its entirety ( see Mazzella v. City of New York, 72 A.D.3d 755, 899 N.Y.S.2d 291;DeStefano v. City of New York, 41 A.D.3d 528, 838 N.Y.S.2d 599). But “if the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and commonsense would dictate that the rule not be applied” ( Mazzella v. City of New York, 72 A.D.3d at 756, 899 N.Y.S.2d 291 [internal quotationmarks omitted]; see Dancy v. New York City Hous. Auth., 23 A.D.3d 512, 806 N.Y.S.2d 630;Powell v. MLG Hillside Assoc., 290 A.D.2d 345, 345–346, 737 N.Y.S.2d 27).
Here, in support of her renewed motion, the defendant established her prima facie entitlement to judgment as a matter of law by submitting evidence, including certified climatological data and an expert affidavit from a forensic meteorologist, that demonstrated that she did not have a reasonable opportunity after the snow storm ended to correct the hazard which allegedly caused the subject accident ( see Sie v. Maimonides Medical Center, 106 A.D.3d at 900, 965 N.Y.S.2d 562;Lanos v. Cronheim, 77 A.D.3d at 632–633, 909 N.Y.S.2d 101). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant's renewed motion for summary judgment dismissing the complaint. SKELOS, J.P., AUSTIN, SGROI and LaSALLE, JJ., concur.