Opinion
2016-02982, Index No. 50979/14.
07-19-2017
Alex BRADSHAW, appellant, v. PEL 300 ASSOCIATES, et al., respondents.
Sacco & Fillas, LLP, Astoria, NY (Nissam Abaev of counsel), for appellant. Pillinger Miller Tarallo, LLP, Elmsford, NY (Michael Neri of counsel), for respondents.
Sacco & Fillas, LLP, Astoria, NY (Nissam Abaev of counsel), for appellant.
Pillinger Miller Tarallo, LLP, Elmsford, NY (Michael Neri of counsel), for respondents.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester
County (Wood, J.), entered March 1, 2015, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly was injured when he slipped and fell on a patch of ice on a walkway on the defendants' property. The plaintiff commenced this action sounding in negligence against the defendants, and the defendants moved for summary judgment dismissing the complaint, arguing that a storm was in progress at the time of the accident, and that their ice removal efforts did not create or exacerbate the condition that allegedly caused the plaintiff to slip and fall. The Supreme Court granted the motion and 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’ " ( Koh Chong Wong v. Kontonis, 128 A.D.3d 1019, 1020, 9 N.Y.S.3d 652, quoting Marchese v. Skenderi, 51 A.D.3d 642, 642, 856 N.Y.S.2d 680 ; see Fernandez v. City of New York, 125 A.D.3d 800, 801, 4 N.Y.S.3d 259 ; Yassa v. Awad, 117 A.D.3d 1037, 1038, 986 N.Y.S.2d 525 ). "However, even if a storm is ongoing, once a property owner elects to remove snow or ice, it must do so with reasonable care or it could be held liable for creating a hazardous condition or exacerbating a natural hazard created by the storm" ( Koh Chong Wong v. Kontonis, 128 A.D.3d at 1020, 9 N.Y.S.3d 652 ; Yassa v. Awad, 117 A.D.3d at 1038, 986 N.Y.S.2d 525 ).
Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting their deposition testimony and certified weather reports, which demonstrated that there was a storm in progress at the time of the plaintiff's accident, and that their efforts to prevent ice accumulation neither created a hazardous condition nor exacerbated a natural hazard created by the storm (see Koh Chong Wong v. Kontonis, 128 A.D.3d at 1020, 9 N.Y.S.3d 652 ; Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 925 N.Y.S.2d 607 ). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants' ice prevention efforts created a hazardous condition or exacerbated a natural hazard created by the storm (see Koh Chong Wong v. Kontonis, 128 A.D.3d at 1020, 9 N.Y.S.3d 652 ; Wei Wen Xie v. Ye Jiang Yong, 111 A.D.3d 617, 618–619, 974 N.Y.S.2d 113 ). The plaintiff also failed to raise a triable issue of fact as to whether the accident was caused by a slippery condition at the location where he allegedly fell that existed prior to the storm, as opposed to precipitation from the storm in progress (see Smith v. Christ's First Presbytm Church of Hempstead, 93 A.D.3d 839, 941 N.Y.S.2d 211 ; Meyers v. Big Six Towers, Inc., 85 A.D.3d at 878, 925 N.Y.S.2d 607 ).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.