Practice point: The Appellate Division reversed the motion court and found that there were issues of fact as to the applicability of the storm in progress rule. In support of its summary judgment motion, defendant submitted an affidavit by a
certified meteorologist who stated that on the day of plaintiff's accident, from midnight until
approximately 2 p.m., there was a winter storm. Plaintiff's
accident happened at approximately 11:30 a.m. However, the weather data
from one of the three location sources on which the meteorologist based
his analysis also shows that the last snowfall was light and ceased at 6:25
a.m. and that freezing rain fell until 8:27
a.m. and did not start falling again until 11:35 a.m. A surveillance
video shows that there was no precipitation at the time of plaintiff's
fall.
The Appellate Division found triable issues of fact as to
whether plaintiff's accident occurred while the storm was still in
progress or whether there was a significant lull in the storm, and
whether the three hours that elapsed between the last freezing rain and
plaintiff's accident afforded defendant a reasonable opportunity to
clear the steps on which plaintiff fell.
In addition, the record presents triable issues of fact as to whether the icy condition that caused plaintiff's fall existed prior to the storm, and whether defendants lacked notice of the preexisting condition. The affidavit of defendant's expert states that at
the start of the day "approximately 17
inches of snow and ice cover was present on untreated, undisturbed and
exposed outdoor surfaces in the vicinity of the subject area." While the
expert states that frozen precipitation fell intermittently during the
day of the accident, he did not state that the alleged icy condition on
the steps resulted from that precipitation and not from remnants of ice
that may have remained on the steps from the prior snowfalls.
Finally, plaintiff and her son testified that the steps had been
icy for some days before the accident. Defendant submitted no evidence
as to when the steps had last been inspected or cleaned of snow and ice
or as to the condition of the steps on the day of the accident or the
days immediately preceding it. Its superintendent's testimony about its
general cleaning procedures alone is insufficient to establish that
defendant lacked notice of the alleged condition before the accident.
Student note: A temporary lull or break in the storm at the time of the
accident does not necessarily establish a reasonable opportunity to
clear away the hazard. However, if the storm has passed and
precipitation has tailed off to such an extent that there is no longer
any appreciable accumulation, then the rationale for continued delay
abates, and storm-in-progress rule will not be applied.
Case: Ndiaye v. NEP W. 119th St. LP, NY Slip Op 00279 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: Disqualification of counsel.
