Opinion
November 15, 1985
Appeal from the Supreme Court, Livingston County, Rosenbloom, J.
Present — Hancock, Jr., J.P., Doerr, Green, O'Donnell and Schnepp, JJ.
Judgment unanimously reversed, on the law, without costs, motions granted and complaint dismissed. Memorandum: In this negligence action, plaintiff Elnora Rothrock claimed that she slipped and fell on defendants' driveway, breaking her right wrist. It was undisputed at trial that plaintiff fell because of an accumulation of ice on the driveway, and that the storm which had caused this condition was still in progress at the time of the accident. It is well settled that "`[R]esponsibility for ice conditions arises, at the most, only after the lapse of a reasonable time for taking protective measures and never while a storm is in progress'" (Valentine v City of New York, 86 A.D.2d 381, 384, affd 57 N.Y.2d 932, quoting Valentine v State of New York, 197 Misc. 972, 975, affd. 277 App. Div. 1069, lv. denied 302 N.Y. 952). Since plaintiff fell on ice formed during a storm which was in progress at the time of the accident, she cannot recover (Moorhead v Hummel, 36 A.D.2d 682, 683; Falina v Hollis Diner, 281 App. Div. 711, affd 306 N.Y. 586). Defendants' motions at trial to dismiss the complaint on this ground should have been granted.