Weiss
v.
Kraus Mgmt., Inc.

Not overruled or negatively treated on appealinfoCoverage
SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial DepartmentSep 12, 2018
2018 N.Y. Slip Op. 6051 (N.Y. App. Div. 2018)

2016-10386

09-12-2018

Shulem Weiss, respondent, v. Kraus Management, Inc., et al., appellants.

Pillinger Miller Tarallo, LLP, Elmsford, NY (Michael Neri of counsel), for appellants. Subin Associates, LLP (Pollack, Pollack, Isaac & De Cicco, LLP, New York, NY [Gregory T. Cerchione, Brian J. Isaac, and Jillian Rosen], of counsel), for respondent.


BETSY BARROS ANGELA G. IANNACCI LINDA CHRISTOPHER, JJ. (Index No. 2595/14)

Pillinger Miller Tarallo, LLP, Elmsford, NY (Michael Neri of counsel), for appellants.

Subin Associates, LLP (Pollack, Pollack, Isaac & De Cicco, LLP, New York, NY [Gregory T. Cerchione, Brian J. Isaac, and Jillian Rosen], of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated September 9, 2016. The order denied the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against the defendants to recover damages for personal injuries he allegedly sustained when he slipped and fell on ice on a driveway. The defendants moved for summary judgment dismissing the complaint, contending that the storm in progress rule applied. The Supreme Court denied the motion, and the defendants appeal.

The defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law based on the storm in progress rule. The evidence submitted by the defendants failed to establish that the ice upon which the plaintiff slipped was the result of an ongoing storm as opposed to an accumulation of ice from prior snowfalls (see Morales v Davidson Apt., LLC, 157 AD3d 884, 885; McBryant v Pisa Holding Corp., 110 AD3d 1034, 1035-1036; Dancy v New York City Hous. Auth., 23 AD3d 512, 513). Since the defendants failed to meet their initial burden as the movants, it is not necessary to review the sufficiency of the evidence submitted by the plaintiff in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Accordingly, we agree with the Supreme Court's determination denying the defendants' motion for summary judgment dismissing the complaint.

BALKIN, J.P., BARROS, IANNACCI and CHRISTOPHER, JJ., concur. ENTER:

Aprilanne Agostino

Clerk of the Court