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Dylan v. CEJ Properties, LLC

Supreme Court of New York, Second Department

March 29, 2017

Rae Dylan, appellant,
v.
CEJ Properties, LLC, respondent. Index No. 4529/14

          Thomas D. Wilson, P.C., for appellant.

          Milber Makris Plousadis & Seiden, LLP, Woodbury, NY (David A. Lore of counsel), for respondent.

          REINALDO E. RIVERA, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, JEFFREY A. COHEN, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated May 18, 2016, which granted the defendant's motion for summary judgment dismissing the complaint.

         ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

         The plaintiff allegedly slipped and fell on ice, which was underneath snow, while walking on the public sidewalk abutting property owned by the defendant in Manhattan. The plaintiff commenced this action against the defendant, alleging negligence. The defendant moved for summary judgment dismissing the complaint, asserting that because a storm was in progress when the plaintiff slipped and fell, it could not be held liable. The Supreme Court granted the motion, and the plaintiff appeals. We reverse.

         As the proponent of its motion for summary judgment, the defendant had the burden of establishing, prima facie, that it neither created the ice condition nor had actual or constructive notice of the condition (see Ryan v Taconic Realty Assoc., 122 A.D.3d 708, 709; Smith v Christ's First Presbyt. Church of Hempstead, 93 A.D.3d 839; Meyers v Big Six Towers, Inc., 85 A.D.3d 877). This burden may be satisfied by presenting evidence that there was a storm in progress when the injured plaintiff allegedly slipped and fell (see Smith v Christ's First Presbyt. Church of Hempstead, 93 A.D.3d at 839-840; Meyers v Big Six Towers, Inc., 85 A.D.3d at 877; Sfakianos v Big Six Towers, Inc., 46 A.D.3d 665). "Under the so-called storm in progress' rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm" (Marchese v Skenderi, 51 A.D.3d 642, 642; see Solazzo v New York City Tr. Auth., 6 N.Y.3d 734; Dumela-Felix v FGP W. St., LLC, 135 A.D.3d 809; McCurdy v KYMA Holdings, LLC., 109 A.D.3d 799; Smith v Christ's First Presbyt. Church of Hempstead, 93 A.D.3d at 840; Weller v Paul, 91 A.D.3d 945, 947). However, if a storm is ongoing, and a property owner elects to remove snow, it must do so with reasonable care or it could be held liable for creating or exacerbating a natural hazard created by the storm (see Kantor v Leisure Glen Homeowners Assn., Inc., 95 A.D.3d 1177; Petrocelli v Marrelli Dev. Corp., 31 A.D.3d 623; Salvanti v Sunset Indus. Park Assoc., 27 A.D.3d 546; Chaudhry v East Buffet & Rest., 24 A.D.3d 493, 494).

         Here, in support of its motion, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence, which included the affidavit of its meteorologist, as well as certified climatological data, which demonstrated that the subject accident occurred while a storm was in progress (see Ryan v Taconic Realty Assoc., 122 A.D.3d at 709; Huan Nu Lu v New York City Tr. Auth., 113 A.D.3d 818, 819; Marchese v Skenderi, 51 A.D.3d at 643). In opposition, the evidence relied upon by the plaintiff, which included her affidavit and the affidavit of her meteorologist, raised a triable issue of fact as to whether any snow removal efforts the defendant undertook prior to the accident in relation to the storm either created or exacerbated the ice condition which allegedly caused the plaintiff to fall (see Lopez-Calderon v ...


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