Opinion
2020–06616 Index No. 606698/15
02-15-2023
Bonnie BODOFF, et al., respondents, v. CEDARHURST PARK CORP., et al., appellants.
Crafa & Sofield, P.C., Garden City, NY (Joseph R. Crafa of counsel), for appellants. Bamundo Zwal Schermerhorn & Caffrey, LLP, New York, NY (Michael C. Zwal of counsel), for respondents.
Crafa & Sofield, P.C., Garden City, NY (Joseph R. Crafa of counsel), for appellants.
Bamundo Zwal Schermerhorn & Caffrey, LLP, New York, NY (Michael C. Zwal of counsel), for respondents.
FRANCESCA E. CONNOLLY, J.P., ROBERT J. MILLER, PAUL WOOTEN, LILLIAN WAN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Denise L. Sher, J.), dated August 24, 2020. The order, insofar as appealed from, denied the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs. The injured plaintiff, and her husband suing derivatively, commenced this action against the defendants, inter alia, to recover damages for personal injuries allegedly sustained when the injured plaintiff slipped and fell on ice on the morning of January 5, 2014. The defendants moved for summary judgment dismissing the complaint, contending that the storm in progress rule applied. The Supreme Court, among other things, denied the motion, and the defendants appeal.
"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" ( Casey–Bernstein v. Leach & Powers, LLC, 170 A.D.3d 651, 652, 95 N.Y.S.3d 314 [internal quotation marks omitted]; see Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 735, 810 N.Y.S.2d 121, 843 N.E.2d 748 ).
According to certified meteorological data and a meteorologist's affidavit submitted by the defendants in support of their motion, only trace amounts of precipitation, totaling less than one-tenth of an inch, fell between approximately 7:00 a.m. and 1:00 p.m. on the date of the incident, and there was no snowfall on the day prior to the incident. The defendants' other submissions, including excerpts of the transcript of the injured plaintiff's deposition, present triable issues of fact as to whether any precipitation occurred at or near the time that she slipped and fell. Thus, the defendants failed to establish, prima facie, that there was a storm in progress at the time of the accident (see Edmund–Hunter v. Toussie, 190 A.D.3d 946, 947, 136 N.Y.S.3d 903 ; Haraburda v. City of New York, 168 A.D.3d 485, 486, 89 N.Y.S.3d 893 ; McBryant v. Pisa Holding Corp., 110 A.D.3d 1034, 973 N.Y.S.2d 757 ; Dancy v. New York City Hous. Auth., 23 A.D.3d 512, 513, 806 N.Y.S.2d 630 ). Since the defendants failed to meet their initial burden as the movants, it is not necessary to review the sufficiency of the plaintiffs' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
The defendants' remaining contention, regarding their lack of constructive notice of the alleged dangerous condition, was improperly raised for the first time in their reply papers (see U.S. Bank N.A. v. Crockett, 201 A.D.3d 767, 769, 156 N.Y.S.3d 883 ).
Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.
CONNOLLY, J.P., MILLER, WOOTEN and WAN, JJ., concur.