Opinion
2016–11448 Index No. 9823/14
02-07-2018
Diane GERVASI, etc., appellant, v. Slobodan BLAGOJEVIC, respondent.
Holihan & Associates, P.C., Richmond Hill, N.Y. (Nazareth Markarian and Stephen Holihan of counsel), for appellant. Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby and Maggie O'Connor of counsel), for respondent.
Holihan & Associates, P.C., Richmond Hill, N.Y. (Nazareth Markarian and Stephen Holihan of counsel), for appellant.
Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby and Maggie O'Connor of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Queens County (Sampson, J.), entered October 19, 2016, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
On January 5, 2014, at about 9:30 a.m., Frank Gervasi allegedly slipped and fell on ice on a sidewalk abutting the defendant's property in Middle Village, Queens. After the fall, Frank Gervasi had no recollection of the incident due to his injuries, and his wife, Diane Gervasi, was appointed as his guardian. Diane Gervasi, individually and as guardian for the person and property of Frank Gervasi (hereinafter the plaintiff), commenced this personal injury action against the defendant. The defendant moved for summary judgment dismissing the complaint, arguing that he could not be held liable because the icy condition was created by precipitation during a storm in progress. The Supreme Court granted the motion. The plaintiff appeals.
Under the "storm in progress" rule, a property owner will not be held liable in negligence for accidents occurring as a result of a slippery snow or ice condition "occurring during an ongoing storm or for a reasonable time thereafter" ( Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 735, 810 N.Y.S.2d 121, 843 N.E.2d 748 ; see Aronov v. St. Vincent's Hous. Dev. Fund Co., Inc., 145 A.D.3d 648, 649, 43 N.Y.S.3d 99 ; Ryan v. Taconic Realty Assoc., 122 A.D.3d 708, 709, 997 N.Y.S.2d 143 ; Marchese v. Skenderi, 51 A.D.3d 642, 856 N.Y.S.2d 680 ). Here, in support of his motion, the defendant submitted his deposition testimony, the plaintiff's deposition testimony, and the affidavit of a meteorologist with attached certified climatological data, which demonstrated that, at the time of the accident, freezing rain was falling and the temperature was at or below freezing. Accordingly, the defendant established, prima facie, that a storm was ongoing at the time of Frank Gervasi's fall (see Sherman v. New York State Thruway Auth., 27 N.Y.3d 1019, 1021, 32 N.Y.S.3d 568, 52 N.E.3d 231 ; Aronov v. St. Vincent's Hous. Dev. Fund Co., Inc., 145 A.D.3d at 649–650, 43 N.Y.S.3d 99 ; Burniston v. Ranric Enters. Corp., 134 A.D.3d 973, 973–974, 21 N.Y.S.3d 694 ; Fisher v. Kasten, 124 A.D.3d 714, 715, 2 N.Y.S.3d 189 ; Smith v. Christ's First Presbyt. Church of Hempstead, 93 A.D.3d 839, 839–840, 941 N.Y.S.2d 211 ).
In opposition, however, the plaintiff raised a triable issue of fact as to whether the icy condition that caused the fall existed prior to the storm in progress (see Burniston v. Ranric Enters. Corp., 134 A.D.3d at 973–974, 21 N.Y.S.3d 694 ; McLaughlin v. 22 New Scotland Ave., LLC, 132 A.D.3d 1190, 1191, 20 N.Y.S.3d 172 ; Penn v. 57–63 Wadsworth Terrace Holding, LLC, 112 A.D.3d 426, 975 N.Y.S.2d 668 ; see also Ndiaye v. NEP W. 119th St. LP, 124 A.D.3d 427, 428, 1 N.Y.S.3d 50 ; cf. Smith v. Christ's First Presbyt. Church of Hempstead, 93 A.D.3d at 840, 941 N.Y.S.2d 211 ; Alers v. La Bonne Vie Org., 54 A.D.3d 698, 699, 863 N.Y.S.2d 750 ; Reagan v. Hartsdale Tenants Corp., 27 A.D.3d 716, 813 N.Y.S.2d 153 ). At her deposition, the plaintiff testified that when she found Frank Gervasi lying on the sidewalk after the accident, the sidewalk was covered by a layer of ice that was approximately one inch thick. In her affidavit in opposition, the plaintiff again stated that the ice was approximately one inch thick. The plaintiff further submitted an affidavit from her own meteorologist, who opined that given the small amount of precipitation that fell on the morning of the accident prior to the accident, the one-inch-thick layer of ice was not the product of the storm in progress. To the contrary, the plaintiff's expert meteorologist opined that the ice was caused by substantial precipitation from a storm that occurred one or two days (at least 30 hours) prior to the storm in progress. Contrary to the Supreme Court's determination, this expert opinion was not speculative. The plaintiff's expert relied upon undisputed meteorological records, considered the plaintiff's description of the ice, and explained how the meteorological events led to the formation of the particular patch of ice. This was sufficient to raise a triable issue of fact (see Rodriguez v. Woods, 121 A.D.3d 474, 476, 994 N.Y.S.2d 583 ; cf. McCord v. Olympia & York Maiden Lane Co., 8 A.D.3d 634, 636, 779 N.Y.S.2d 542 ; cf. also Bernstein v. City of New York, 69 N.Y.2d 1020, 1022, 517 N.Y.S.2d 908, 511 N.E.2d 52 ).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.
The plaintiff's remaining contention need not be reached in light of our determination.
LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.