Opinion
2013-05-8
Keith CHEUNG, appellant, v. NEW YORK CITY TRANSIT AUTHORITY, respondent.
Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Stephen C. Glasser and Gabriel A. Arce–Yee of counsel), for appellant. Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for respondent.
Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Stephen C. Glasser and Gabriel A. Arce–Yee of counsel), for appellant. Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Ritholtz, J.), entered November 17, 2011, which, upon a jury verdict, is in favor of the defendant on the issue of liability and against him, dismissing the complaint.
ORDERED that the judgment is reversed, on the law, with costs, the complaint is reinstated, and the matter is remitted to the Supreme Court, Queens County, for a new trial.
The plaintiff correctly contends that the Supreme Court erred in charging the jury with regard to the so-called “storm in progress” rule. Under that 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’ ” ( Cotter v. Brookhaven Mem. Hosp. Med. Ctr., Inc., 97 A.D.3d 524, 524, 947 N.Y.S.2d 608, quoting Marchese v. Skenderi, 51 A.D.3d 642, 642, 856 N.Y.S.2d 680). “[I]f 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 commonsense would dictate that the rule not be applied” ( Powell v. MLG Hillside Assoc., 290 A.D.2d 345, 345–346, 737 N.Y.S.2d 27;see Mazzella v. City of New York, 72 A.D.3d 755, 756, 899 N.Y.S.2d 291;Dancy v. New York City Hous. Auth., 23 A.D.3d 512, 513, 806 N.Y.S.2d 630). Under the circumstances of this case, the Supreme Court improperly instructed the jury as to the storm in progress rule, since there was insufficient evidence in the record to support that defense ( see generally Nallan v. Helmsley–Spear, Inc., 50 N.Y.2d 507, 517, 429 N.Y.S.2d 606, 407 N.E.2d 451;Deshommes v. Hussain, 47 A.D.3d 869, 869, 850 N.Y.S.2d 614;Gonzalez v. Jamaica Hosp., 25 A.D.3d 652, 652, 807 N.Y.S.2d 316). The plaintiff is entitled to a new trial, since it cannot be said that the error was harmless ( see generally De Leon v. New York City Tr. Auth., 50 N.Y.2d 176, 181, 428 N.Y.S.2d 625, 406 N.E.2d 442;Nelson v. HSBC Bank USA, 87 A.D.3d 995, 999–1000, 929 N.Y.S.2d 259).