Opinion
2014-08-27
Rodney SHERMAN, respondent, v. NEW YORK STATE THRUWAY AUTHORITY, appellant.
Alan I. Lamer, Elmsford, N.Y. (McGaw Alventosa & Zajac [Dawn C. DeSimone and Andrew Zajac] of counsel), for appellant. Norman M. Block, P.C., Hawthorne, N.Y., for respondent.
Alan I. Lamer, Elmsford, N.Y. (McGaw Alventosa & Zajac [Dawn C. DeSimone and Andrew Zajac] of counsel), for appellant. Norman M. Block, P.C., Hawthorne, N.Y., for respondent.
In a claim to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Court of Claims (Mignano, J.), dated February 1, 2013, as denied its motion for summary judgment dismissing the claim.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the claim is granted.
Contrary to the determination of the Court of Claims, the defendant, in support of its motion, established that there was a storm in progress at the time of the accident. The deposition testimony of the claimant, which was supported by certified climatological data, demonstrated that precipitation was falling when the claimant allegedly slipped and fell on ice on a sidewalk at the Troop T barracks in Newburgh on February 25, 2011, and for a substantial period of time prior to the accident. Inasmuch as the weather condition in question was in progress when the claimant's accident occurred, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the claim ( see Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 925 N.Y.S.2d 607; Mazzella v. City of New York, 72 A.D.3d 755, 755, 899 N.Y.S.2d 291; see also Jefferson v. Long Is. Coll. Hosp., 234 A.D.2d 589, 652 N.Y.S.2d 528). In opposition to the defendant's prima facie showing, the claimant failed to raise a triable issue of fact.
Accordingly, the Court of Claims should have granted the defendant's motion for summary judgment dismissing the claim. SKELOS, J.P., BALKIN, HALL and MALTESE, JJ., concur.