The Appellate Division affirmed dismissal of the complaint, finding that, pursuant to CPLR 4528, defendants' citation to the climatological data relied upon by their expert meteorologist established, prima facie, entitlement to
summary judgment based on the storm-in-progress defense In opposition, plaintiffs failed to raise a triable
issue as to whether it had stopped snowing long enough to have implicated defendants' duty to clear the snow. Plaintiff's affidavit does not shed light on the
snowfall during the relevant period, as Administrative Code of City of
NY § 16-123(a) gives landowners a four-hour grace period to clear snow
and ice, not including the period between 9:00 p.m. and 7:00 a.m. While the nonparty witness's observation that it was not snowing
at 5:00 p.m. indicates a temporary lull in the storm, it is insufficient to raise a triable issue of fact as to a
duty to clear snow and ice.
Case: Jakubowski v. Axton Owner LLC, NY Slip Op 08724 (1st Dep't December 14, 2017)
Here is the decision.
