Summary
applying the snow in progress rule to landowners and not snow contractors
Summary of this case from Warboys v. SHI-III Briarcliff Reit, LLCOpinion
2012-03-27
Leitha SMITH, et al., appellants, v. CHRIST'S FIRST PRESBYTERIAN CHURCH OF HEMPSTEAD, respondent(and a third-party action).
Paul Ajlouny & Associates, P.C., Garden City, N.Y. (Neil Flynn of counsel), for appellants. Graybow Law PLLC, Congers, N.Y. (Lori F. Graybow and Zoltan Vaizer of counsel), for respondent.
Paul Ajlouny & Associates, P.C., Garden City, N.Y. (Neil Flynn of counsel), for appellants. Graybow Law PLLC, Congers, N.Y. (Lori F. Graybow and Zoltan Vaizer of counsel), for respondent.
RUTH C. BALKIN, J.P., RANDALL T. ENG, L. PRISCILLA HALL, and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Feinman, J.), entered December 9, 2010, as granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The injured plaintiff allegedly slipped and fell on snow and ice on an entrance ramp at the defendant, Christ's First Presbyterian Church of Hempstead (hereinafter the Church). The plaintiffs subsequently commenced this action against the Church to recover damages, inter alia, for personal injuries. The Church moved for summary judgment dismissing the complaint, arguing, among other things, that the “storm in progress” doctrine precluded recovery. The Supreme Court granted the Church's motion. The plaintiffs appeal, and we affirm.
As the proponent of the motion for summary judgment, the Church had the burden of establishing, prima facie, that it neither created the snow and ice condition nor had actual or constructive notice of the condition ( see Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 925 N.Y.S.2d 607). This burden may be established by presenting evidence that there was a storm in progress when the injured plaintiff allegedly slipped and fell ( id.; see Sfakianos v. Big Six Towers, Inc., 46 A.D.3d 665, 846 N.Y.S.2d 584). Under the “storm in progress” rule, a property owner will not be held liable for accidents occurring as a result of the accumulation of snow or ice on its premises until an adequate period of time has passed following the cessation of the storm, within which time the owner has the opportunity to ameliorate the hazards caused by the storm ( see Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 735, 810 N.Y.S.2d 121, 843 N.E.2d 748; Sfakianos v. Big Six Towers, Inc., 46 A.D.3d 665, 846 N.Y.S.2d 584; Smith v. Leslie, 270 A.D.2d 333, 704 N.Y.S.2d 612; Taylor v. New York City Tr. Auth., 266 A.D.2d 384, 698 N.Y.S.2d 52; Mangieri v. Prime Hospitality Corp., 251 A.D.2d 632, 633, 676 N.Y.S.2d 207).
Contrary to the plaintiffs' contentions, the Church established its prima facie entitlement to judgment as a matter of law by submitting evidence that the storm did not cease until, at the earliest, 11:30 P.M. the night before the alleged accident, which occurred at 8:00 A.M. The Church demonstrated that it did not have a reasonably sufficient time to remedy the allegedly dangerous condition ( see Brandon v. Hallivis, 67 A.D.3d 618, 888 N.Y.S.2d 575; Sfakianos v. Big Six Towers, Inc., 46 A.D.3d 665, 846 N.Y.S.2d 584; Whitt v. St. John's Episcopal Hosp., 258 A.D.2d 648, 648–649, 685 N.Y.S.2d 789; Urena v. New York City Transit Auth., 248 A.D.2d 377, 378, 669 N.Y.S.2d 662; Drake v. Prudential Ins. Co., 153 A.D.2d 924, 545 N.Y.S.2d 731).
In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the storm in progress rule applies ( see Amplo v. Milden Ave. Realty Assoc., 52 A.D.3d 750, 751, 862 N.Y.S.2d 519; cf. Bowen v. City Univ. of N.Y., 294 A.D.2d 322, 743 N.Y.S.2d 119; see also Brandon v. Hallivis, 67 A.D.3d at 618, 888 N.Y.S.2d 575; Sfakianos v. Big Six Towers, Inc., 46 A.D.3d at 665, 846 N.Y.S.2d 584; Whitt v. St. John's Episcopal Hosp., 258 A.D.2d at 648–649, 685 N.Y.S.2d 789; Urena v. New York City Tr. Auth., 248 A.D.2d at 378, 669 N.Y.S.2d 662; Drake v. Prudential Ins. Co., 153 A.D.2d at 924, 545 N.Y.S.2d 731). The plaintiffs also failed to raise a triable issue of fact as to whether the accident was caused by a slippery condition at the location where the injured plaintiff allegedly fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and whether the defendant had actual or constructive notice of the preexisting condition ( see Meyers v. Big Six Towers, Inc., 85 A.D.3d at 877–878, 925 N.Y.S.2d 607; Sfakianos v. Big Six Towers, Inc., 46 A.D.3d at 665, 846 N.Y.S.2d 584; DeVito v. Harrison House Assoc., 41 A.D.3d 420, 837 N.Y.S.2d 726; Robinson v. Trade Link Am., 39 A.D.3d 616, 617, 833 N.Y.S.2d 243; see also Myrow v. City of Poughkeepsie, 3 A.D.3d 480, 769 N.Y.S.2d 604).
The plaintiffs' remaining contention is without merit.
Accordingly, the Supreme Court properly granted the Church's motion for summary judgment dismissing the complaint ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).