Opinion
2018–00900 Index No. 51859/16
03-27-2019
Kathleen RYAN, Appellant, v. BEACON HILL ESTATES COOPERATIVE, INC., et al., Respondents.
Krentsel & Guzman (Michael H. Zhu, Esq., P. C., New York, N.Y. [Brian Isaac ], of counsel), for appellant. Margaret G. Klein (Greater New York Mutual Insurance Company, New York, N.Y. [Jonathan A. Messier ], of counsel), for respondents.
Krentsel & Guzman (Michael H. Zhu, Esq., P. C., New York, N.Y. [Brian Isaac ], of counsel), for appellant.
Margaret G. Klein (Greater New York Mutual Insurance Company, New York, N.Y. [Jonathan A. Messier ], of counsel), for respondents.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated November 30, 2017. The order granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff alleges that on January 17, 2016, at approximately 6:30 pm, she slipped and fell on ice beneath a layer of snow on a sidewalk adjacent to her residence located in Dobbs Ferry. At the time of the accident, the residence was owned by the defendant Beacon Hill Estates Cooperative, Inc., and maintained by the defendant Stillman Management, Inc. (hereinafter together the defendants). The plaintiff subsequently commenced this action to recover damages for personal injuries. The plaintiff alleges that the defendants were negligent in, among other things, failing to maintain the premises in a reasonably safe condition. After joinder of issue, the defendants moved for summary judgment dismissing the complaint on the ground that the storm in progress rule applied. The Supreme Court granted the defendants' motion. The plaintiff appeals.
The defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the complaint on the ground that the storm in progress rule applied. A defendant moving for summary judgment in an action predicated upon the presence of snow or ice has the burden of establishing, prima facie, that it neither created the snow or ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition (see Martino v. Patmar Prop., Inc., 123 A.D.3d 890, 999 N.Y.S.2d 449 ; Talamas v. Metropolitan Transp. Auth., 120 A.D.3d 1333, 1334, 993 N.Y.S.2d 102 ). This burden may be satisfied by "presenting evidence that there was a storm in progress when the injured plaintiff allegedly slipped and fell" ( Smith v. Christ's First Presbyt. Church of Hempstead, 93 A.D.3d 839, 839–840, 941 N.Y.S.2d 211 ; see Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 925 N.Y.S.2d 607 ; Sfakianos v. Big Six Towers, Inc., 46 A.D.3d 665, 846 N.Y.S.2d 584 ). "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 ; Dumela–Felix v. FGP W. St., LLC, 135 A.D.3d 809, 810, 22 N.Y.S.3d 896 ; McCurdy v. KYMA Holdings, LLC, 109 A.D.3d 799, 799–800, 971 N.Y.S.2d 137 ; Smith v. Christ's First Presbyt. Church of Hempstead, 93 A.D.3d at 840, 941 N.Y.S.2d 211 ; Weller v. Paul, 91 A.D.3d 945, 947, 938 N.Y.S.2d 152 ).
Here, the evidence submitted by the defendants in support of their motion, in particular, certified climatological data and an affidavit from the defendants' expert meteorologist, demonstrated, prima facie, that a storm was in progress at the time of the accident (see Pankratov v. 2935 OP, LLC, 160 A.D.3d 757, 758–759, 75 N.Y.S.3d 208 ; Dylan v. CEJ Props., LLC, 148 A.D.3d 1115, 1116, 50 N.Y.S.3d 483 ; Ryan v. Taconic Realty Assoc., 122 A.D.3d 708, 709, 997 N.Y.S.2d 143 ; Huan Nu Lu v. New York City Tr. Auth., 113 A.D.3d 818, 819, 978 N.Y.S.2d 907 ; Marchese v. Skenderi, 51 A.D.3d at 643, 856 N.Y.S.2d 680 ). The plaintiff does not contend that a storm was not in progress at the time of the accident (see Burniston v. Ranric Enters. Corp., 134 A.D.3d 973, 974, 21 N.Y.S.3d 694 ). The plaintiff's opposition papers failed to raise a triable issue of fact as to whether the accident was caused by ice that existed prior to the storm, as opposed to precipitation from the storm in progress, and whether the defendants had constructive notice of the alleged preexisting condition (see Amato v. Brookhaven Professional Park, L.P., 162 A.D.3d 620, 620, 77 N.Y.S.3d 496 ; Smith v. Christ's First Presbyt. Church of Hempstead, 93 A.D.3d at 840, 941 N.Y.S.2d 211 ; Dowden v. Long Is. R.R., 305 A.D.2d 631, 759 N.Y.S.2d 544 ). The opinions contained in the affidavit of the plaintiff's meteorological expert as to when and how the ice was formed were based on speculation and conjecture (see Pankratov v. 2935 OP, LLC, 160 A.D.3d at 759, 75 N.Y.S.3d 208 ; Butler v. Roman Catholic Diocese of Rockville Ctr., 123 A.D.3d 868, 869, 1 N.Y.S.3d 130 ).
Accordingly, we agree with the Supreme Court's determination granting the defendants' motion for summary judgment dismissing the complaint.
BALKIN, J.P., AUSTIN, ROMAN and CONNOLLY, JJ., concur.