Opinion
13467, 101148/06
11-13-2014
Anthony CLEMENT, Plaintiff–Appellant, v. The NEW YORK CITY TRANSIT AUTHORITY, Defendant–Respondent.
G. Wesley Simpson, P.C., Brooklyn (G. Wesley Simpson of counsel), for appellant. Lawrence Heisler, Brooklyn (Anna J. Ervolina of counsel), for respondent.
G. Wesley Simpson, P.C., Brooklyn (G. Wesley Simpson of counsel), for appellant.
Lawrence Heisler, Brooklyn (Anna J. Ervolina of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, MOSKOWITZ, RICHTER, FEINMAN, JJ.
Opinion Order, Supreme Court, New York County (Michael D. Stallman, J.), entered March 26, 2013, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The court properly granted defendant's motion based on the “storm in progress” defense (see Powell v. MLG Hillside Assoc., 290 A.D.2d 345, 737 N.Y.S.2d 27 [1st Dept.2002] ; Pippo v. City of New York, 43 A.D.3d 303, 304, 842 N.Y.S.2d 367 [1st Dept.2007] ). Although defendant inadvertently omitted the relevant climatological data from its initial motion papers, the affirmation of its counsel stated that it was snowing from about 11 p.m. on the night before the accident until 5 a.m., more than three hours after the accident, and plaintiff testified that it had stopped snowing only two hours before his fall. The obligation to take reasonable measures to remedy a dangerous condition caused by a storm does not commence until a reasonable time after the storm has ended (see Weinberger v. 52 Duane Assoc., LLC, 102 A.D.3d 618, 619, 959 N.Y.S.2d 154 [1st Dept.2013] ). Based on plaintiff's testimony alone, a reasonable time had not yet elapsed.
Plaintiff failed to raise a triable issue of fact concerning whether defendant breached a duty to clean the subway stairs when trace amounts of precipitation were falling (see Prince v. New York City Hous. Auth., 302 A.D.2d 285, 756 N.Y.S.2d 158 [1st Dept.2003] ).