Opinion
942 CA 20-00170
02-05-2021
Jaclyn SAX, Plaintiff-Appellant, v. WOMEN AND CHILDREN'S HOSPITAL OF BUFFALO AND KALEIDA HEALTH, Doing Business as Women and Children's Hospital of Buffalo, Defendants-Respondents.
VIOLA, CUMMINGS & LINDSAY, LLP, NIAGARA FALLS (MATTHEW T. MOSHER OF COUNSEL), FOR PLAINTIFF-APPELLANT. CONNORS LLP, BUFFALO (CAITLIN E. O'NEIL OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
VIOLA, CUMMINGS & LINDSAY, LLP, NIAGARA FALLS (MATTHEW T. MOSHER OF COUNSEL), FOR PLAINTIFF-APPELLANT.
CONNORS LLP, BUFFALO (CAITLIN E. O'NEIL OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained when she slipped and fell on snow and ice on defendants’ property. We agree with plaintiff that Supreme Court erred in granting defendants’ motion for summary judgment dismissing the complaint. In moving for summary judgment, defendants argued that there was a storm in progress at the time that plaintiff fell. Assuming, arguendo, that the report of defendants’ expert meteorologist was sufficient to establish that there was a storm at the location where plaintiff fell (cf. Ayers v. Pioneer Cent. Sch. Dist. , 187 A.D.3d 1625, 1625, 133 N.Y.S.3d 355 [4th Dept. 2020] ), we conclude that defendants failed to meet their initial burden of establishing that "plaintiff's injuries [were] sustained as the result of any icy condition occurring during an ongoing storm or for a reasonable time thereafter" ( Solazzo v. New York City Tr. Auth. , 6 N.Y.3d 734, 735, 810 N.Y.S.2d 121, 843 N.E.2d 748 [2005] ; see Schult v. Pyramid Walden Co., L.P. , 167 A.D.3d 1577, 1577, 89 N.Y.S.3d 510 [4th Dept. 2018] ; see generally Sherman v. New York State Thruway Auth. , 27 N.Y.3d 1019, 1020-1021, 32 N.Y.S.3d 568, 52 N.E.3d 231 [2016] ). A property owner has no duty to remove the snow "until a reasonable time ha[s] elapsed after cessation of the storm" ( Witherspoon v. Tops Mkts., LLC , 128 A.D.3d 1541, 1541, 8 N.Y.S.3d 843 [4th Dept. 2015] [internal quotation marks omitted]). In support of their motion, defendants submitted the deposition testimony of plaintiff, who testified that it had snowed the night before the accident, but that it was not snowing at the time of her fall at 10:00 a.m. on the day of the accident. Plaintiff further testified that, while the sidewalks and ramp to the staircase of defendants’ building had been cleared of snow, the steps were still snow-covered.
Inasmuch as defendants failed to meet their initial burden, the burden never shifted to plaintiff to raise a triable issue of fact (see Schult , 167 A.D.3d at 1577, 89 N.Y.S.3d 510 ; see generally Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).