Summary
affirming granting of defendants' motion for summary judgment on basis of storm in progress doctrine
Summary of this case from Belevich v. Renaissance I, LLCOpinion
2014-10568, Index No. 4938/12.
04-06-2016
Robert BAKER, appellant, v. ST. CHRISTOPHER'S INN, INC., et al., respondents.
Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury, N.Y. (Daniel Justus Solinsky of counsel), for appellant. Lynch, Schwab & Gasparini, PLLC, White Plains, N.Y. (Louis U. Gasparini of counsel), for respondents.
Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury, N.Y. (Daniel Justus Solinsky of counsel), for appellant.
Lynch, Schwab & Gasparini, PLLC, White Plains, N.Y. (Louis U. Gasparini of counsel), for respondents.
JOHN M. LEVENTHAL, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Sproat, J.), dated September 8, 2014, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On February 26, 2010, at approximately 9:30 a.m., the plaintiff allegedly was injured when the roof of a maintenance shed located on premises owned by the defendants partially collapsed while the plaintiff was inside. A significant amount of snow had accumulated on the roof during the course of an ongoing snow storm. Thereafter, the plaintiff commenced this action against the defendants, and the defendants moved for summary judgment dismissing the complaint. In the order appealed from, the Supreme Court granted the defendants' motion. The plaintiff appeals.
“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 Anderson v. Landmark at Eastview, Inc., 129 A.D.3d 750, 751, 10 N.Y.S.3d 605 ; McCurdy v. KYMA Holdings, LLC, 109 A.D.3d 799, 799, 971 N.Y.S.2d 137 ). “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” (Rabinowitz v. Marcovecchio, 119 A.D.3d 762, 762, 989 N.Y.S.2d 305 ).
Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence including the affidavit of a meteorologist, certified climatological data, and the affidavit of a licensed engineer. That evidence demonstrated that the roof of the shed partially collapsed due to the weight of the snow which had accumulated thereon, and that it was snowing at the time of the occurrence and, accordingly, that the storm in progress rule applies (see Ryan v. Taconic Realty Assoc., 122 A.D.3d 708, 709, 997 N.Y.S.2d 143 ; Marchese v. Skenderi, 51 A.D.3d at 642, 856 N.Y.S.2d 680 ). The burden then shifted to the plaintiff to raise a triable issue of fact as to whether the precipitation from the storm in progress was not the cause of the accident (see Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 877–878, 925 N.Y.S.2d 607 ). The plaintiff failed to sustain this burden. Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.