Opinion
159 CA 18–01557
03-15-2019
Steven M. PATRICOLA, Plaintiff–Respondent, v. GENERAL MOTORS CORPORATION, GM Powertrain, Defendants–Appellants, et al., Defendant.
SUGARMAN LAW FIRM, BUFFALO (JENNA W. KLUCSIK OF COUNSEL), FOR DEFENDANTS–APPELLANTS. CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
SUGARMAN LAW FIRM, BUFFALO (JENNA W. KLUCSIK OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this premises liability action seeking damages for injuries he allegedly sustained when he slipped on a walkway on property owned by defendants-appellants (defendants). Defendants appeal from an order that, inter alia, denied their motion for summary judgment dismissing the complaint against them. We affirm.
Contrary to their contention, defendants failed to establish their entitlement to summary judgment based on the storm in progress doctrine. It is well settled that "[a] landowner is not responsible for a failure to remove snow and ice until a reasonable time has elapsed after cessation of the storm" ( Cerra v. Perk Dev., 197 A.D.2d 851, 851, 602 N.Y.S.2d 277 [4th Dept. 1993] ; see Baia v. Allright Parking Buffalo, Inc., 27 A.D.3d 1153, 1154, 811 N.Y.S.2d 843 [4th Dept. 2006] ). But "if the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and commonsense would dictate that the rule not be applied" ( Mazzella v. City of New York, 72 A.D.3d 755, 756, 899 N.Y.S.2d 291 [2d Dept. 2010] [internal quotation marks omitted]; see Rabinowitz v. Marcovecchio, 119 A.D.3d 762, 762, 989 N.Y.S.2d 305 [2d Dept. 2014] ; Boarman v. Siegel, Kelleher & Kahn, 41 A.D.3d 1247, 1248, 837 N.Y.S.2d 822 [4th Dept. 2007] ). Here, defendants' own submissions, which included deposition testimony establishing that snow removal efforts had been underway for more than an hour prior to plaintiff's accident and that only a negligible amount of snow had accumulated in the three hours prior to the accident, raise a triable issue of material fact whether the storm had sufficiently abated to preclude application of the doctrine (see Boarman, 41 A.D.3d at 1248, 837 N.Y.S.2d 822 ). Further, defendants submitted deposition testimony establishing that, prior to plaintiff's accident, workers were removing snow in the area of the walkway where plaintiff fell and should have salted that walkway, but may not have adequately done so. Thus, triable issues of fact exist whether defendants created or had actual or constructive notice of the slippery condition (see Santiago v. Weisheng Enters. LLC, 134 A.D.3d 570, 571, 22 N.Y.S.3d 417 [1st Dept. 2015] ; De La Cruz v. Lettera Sign & Elec. Co., 77 A.D.3d 566, 566, 909 N.Y.S.2d 448 [1st Dept. 2010] ).