T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB
OF COUNSEL), FOR DEFENDANT-APPELLANT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND
from a judgment of the Court of Claims (Renee Forgensi
Minarik, J.), entered February 10, 2016. The interlocutory
judgment apportioned liability 75% to defendant and 25% to
hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Claimant commenced this action seeking damages for injuries
she allegedly sustained when she slipped and fell on ice and
snow on a walkway leading to the entrance to the Orleans
Correctional Facility during visiting hours at that facility.
After a nonjury trial, the Court of Claims found defendant
75% liable for the accident. Defendant appeals, and we
appeal from a judgment entered after a nonjury trial, this
Court has the power to set aside the trial court's
findings if they are contrary to the weight of the
evidence' and to render the judgment we deem warranted by
the facts" (Black v State of New York [appeal
No. 2], 125 A.D.3d 1523, 1524; see Baba-Ali v State of
New York, 19 N.Y.3d 627, 640; Matter of City of
Syracuse Indus. Dev. Agency [Alterm, Inc.], 20 A.D.3d
168, 170). We must give due deference, however, to the
court's evaluation of the credibility of the witnesses
and quality of the proof (see Black, 125 A.D.3d at
1524-1525), and review the record in the light most favorable
to sustain the judgment (see City of Syracuse Indus. Dev.
Agency, 20 A.D.3d at 170). "Moreover, [o]n a bench
trial, the decision of the fact-finding court should not be
disturbed upon appeal unless it is obvious that the
court's conclusions could not be reached under any fair
interpretation of the evidence' " (Black,
125 A.D.3d at 1525; see City of Syracuse Indus. Dev.
Agency, 20 A.D.3d at 170).
is well established that [a] landowner must act as a
reasonable [person] in maintaining his [or her] property in a
reasonably safe condition in view of all the circumstances,
including the likelihood of injury to others, the seriousness
of the injury, and the burden of avoiding the risk'
" (Ferguson v Rochester City Sch. Dist., 99
A.D.3d 1184, 1185, quoting Basso v Miller, 40 N.Y.2d
233, 241). Nevertheless, "[a]lthough a landowner owes a
duty of care to keep his or her property in a reasonably safe
condition, he will not be held liable in negligence for a
plaintiff's injuries sustained as the result of an icy
condition occurring during an ongoing storm or for a
reasonable time thereafter' " (Sherman v New
York State Thruway Auth., 27 N.Y.3d 1019, 1020-1021,
quoting Solazzo v New York City Tr. Auth., 6 N.Y.3d
734, 735; see Hanifan v COR Dev. Co., LLC, 144
A.D.3d 1569, 1569; Gilbert v Tonawanda City Sch.
Dist., 124 A.D.3d 1326, 1327). "A reasonable time
is that period within which the [defendant] should have taken
notice of the icy condition and, in the exercise of
reasonable care, remedied it by clearing the sidewalk or
otherwise eliminating the danger" (Valentine v City
of New York, 86 A.D.2d 381, 383, affd 57 N.Y.2d
conclude that a fair interpretation of the evidence supports
the court's determination that defendant was 75% at fault
for the accident. There is no dispute that the snow and
ice-covered walkway constituted a dangerous condition, and we
reject defendant's contention that the storm in progress
doctrine absolves it of liability. There was no evidence that
it was snowing at the time of or shortly before the accident.
A watch commander log stated that it was snowing
approximately two hours before the accident, but there is no
evidence in the record of any snowfall after that time. The
evidence further established that, although the sidewalk was
cleared approximately two hours before the accident, there
was snow and ice on the sidewalk at the time of the accident.
Contrary to defendant's contention, that evidence does
not establish that it continued snowing after the sidewalk
was cleared inasmuch as it was just as likely that the wind
blew snow from the adjacent field onto the sidewalk.
Defendant failed to establish that the storm in progress
doctrine should apply under those circumstances because it
failed to establish that high winds accompanied the snowfall
on the day of the accident (cf. Gilbert, 124 A.D.3d
at 1327; Powell v MLG Hillside Assoc., 290 A.D.2d
345, 345). Rather, the testimony established that wind would
blow snow onto the sidewalk "[a]ll the time" and
was in the nature of a recurring dangerous condition (see
Anderson v Great E. Mall, L.P., 74 A.D.3d 1760,
1761-1762; see generally Frechette v State of New
York, 129 A.D.3d 1409, 1410-1412).
reject defendant's further contention that its snow
removal efforts on the morning of the accident were
reasonable under the circumstances. The evidence established
that the sidewalk was shoveled approximately two hours before
the accident and again shortly after the accident, and there
is a fair interpretation of the evidence that salt was not
applied to the sidewalk until after the accident. Given that
defendant had knowledge of the time that visiting hours at
the facility were to begin that morning and that snow would
often blow onto the sidewalk from the adjacent ...