- June 4, 2019
Baron & Associates, P.C., Howard Beach, NY, for
Matthew Gallagher, Corporation Counsel, Yonkers, NY (Dusan
Lakic of counsel), for respondents-appellants.
E. CHAMBERS, J.P. LEONARD B. AUSTIN COLLEEN D. DUFFY LINDA
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals, and the defendants cross-appeal, from an
order of the Supreme Court, Westchester County (Linda S.
Jamieson, J.), dated August 28, 2017. The order, insofar as
appealed from, in effect, denied those branches of the
plaintiff's cross motion which were for partial summary
judgment pursuant to CPLR 3212(e) determining that the
defendants owned the property at issue and, in effect, for
summary judgment dismissing the defendants' first
affirmative defense. The order, insofar as cross-appealed
from, in effect, denied the defendants' motion for
summary judgment dismissing the amended complaint.
that the order is affirmed insofar as appealed from; and it
is further, ORDERED that the order is reversed insofar as
cross-appealed from, on the law, and the defendants'
motion for summary judgment dismissing the amended complaint
is granted; and it is further, ORDERED that one bill of costs
is awarded to the defendants.
plaintiff commenced this personal injury action against the
defendants, City of Yonkers and the Yonkers Board of
Education, incorrectly sued herein as the Department of
Education of the City of Yonkers, alleging that he sustained
injuries when he slipped and fell on snow in a parking lot
that was owned by the defendants. Following the completion of
discovery, the defendants moved for summary judgment
dismissing the amended complaint on the ground, inter alia,
that the storm in progress doctrine precluded recovery. The
plaintiff cross-moved, among other things, for partial
summary judgment pursuant to CPLR 3212(e) determining that
the defendants owned the property on which he fell and, in
effect, for summary judgment dismissing the defendants'
first affirmative defense. The Supreme Court, in effect,
denied the defendants' motion and those branches of the
plaintiff's cross motion which were for summary judgment.
The plaintiff appeals, and the defendants cross-appeal.
defendants were entitled to summary judgment dismissing the
amended complaint based upon the storm in progress doctrine.
"Under the 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" (Baolin Liu v
Westchester Prop. Mgt. Group, Inc., 145 A.D.3d 942,
943). The question of whether a reasonable time has elapsed
may be decided by the court as a matter of law in determining
a motion for summary judgment, based upon the circumstances
of the case (see id. at 943; see also Valentine
v City of New York, 57 N.Y.2d 932, 933-934;
Rabinowitz v Marcovecchio, 119 A.D.3d 762, 762).
in support of their motion for summary judgment, the
defendants established their prima facie entitlement to
judgment as a matter of law by submitting evidence that
approximately two inches of snow had fallen in the two hours
that preceded the plaintiff's alleged fall, and that snow
continued to fall at the time at which the plaintiff contends
that he fell. The defendants also submitted the
plaintiff's deposition testimony wherein he admitted that
snow was falling as he drove his son to school. He also
testified that, on the day at issue, he left his house to
drive his son to school sometime between 8:00 a.m. and 8:15
a.m., and he arrived at the school at approximately 9:00 a.m.
Since the plaintiff alleged that his fall happened as soon as
he exited his vehicle at the school, the evidence
demonstrated, as a matter of law, that a reasonable time had
not elapsed for the defendants to remove the snow and/or ice
which the plaintiff has alleged caused him to fall (see
Baolin Liu v Westchester Prop. Mgt. Group, Inc., 145
A.D.3d at 943; Rabinowitz v Marcovecchio, 119 A.D.3d
plaintiff's affidavit submitted in opposition to the
defendants' motion, in which he asserted that there was
no snow falling when he reached the school, did not raise a
triable issue of fact. The plaintiff failed to show that his
travel to the school was of such a long duration that a
reasonable time could have elapsed from the time snow was
falling during his drive to the school to the time that he
contends it stopped before his arrival at the school (see
e.g. Valentine v City of New York, 57 N.Y.2d 932;
Smith v Christ's First Presbyt. Church of
Hempstead, 93 A.D.3d 839, 840). Moreover, the
plaintiff's assertion in his affidavit that no snow was
falling when he drove his son to school raised only a feigned
issue of fact designed to avoid the consequences of his prior
deposition testimony (see Marchese v Skenderi, 51
A.D.3d 642, 642-643).
parties' remaining contentions either are without merit
or need not be reached in light of our determination.
although we agree with the Supreme Court's determination
to deny those branches of the plaintiff's cross motion
which were for summary judgment, the court should have
granted the ...