Summary
finding trace precipitation sufficient to constitute storm in progress
Summary of this case from Ryan v. Taconic Realty Assocs.Opinion
255
February 20, 2003.
Order, Supreme Court, New York County (Michael Stallman, J.), entered January 11, 2002, which, in an action for personal injuries sustained when plaintiff slipped and fell on an icy walkway in a housing complex owned by defendant Housing Authority, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Frederick K. Brewington, for plaintiff-appellant.
Richard E. Lerner, for defendant-respondent.
Before: Saxe, J.P., Buckley, Rosenberger, Gonzalez, JJ.
Defendant established that it owed plaintiff no duty to remove the ice on its walkways where the meteorological evidence established that "trace" precipitation in the form of freezing rain and ice pellets, accompanied by heavy fog and widespread glaze, began falling in the region at 5:00 A.M., two hours before plaintiff's fall, did not end until 11:00 A.M., caused numerous bridge and roadway closures, public transit interruptions, accidents and injuries, and was preceded by a month of predominantly above-freezing temperatures that had no snow or ice (see Candelier v. City of New York, 129 A.D.2d 145, 150, citing Administrative Code of City of New York § 16-123 [building owners have four hours after snowfall stops to remove snow and ice from abutting sidewalks];Valentine v. City of New York, 86 A.D.2d 381, affd 57 N.Y.2d 932 [City has reasonable time after snowfall stops to remove snow and ice from sidewalks]). There is no merit to plaintiff's argument that the meteorological evidence, construed most favorably, raises issues of fact as to whether such "trace" precipitation constituted a storm in progress, and, if so, whether a break in the storm gave defendant a reasonable period of time to clear the ice before he fell. Nor is there merit to plaintiff's other argument that, based on the weather forecast for the day before the accident, defendant should have declared a snow emergency under its own protocols and procedures, and, if it had, its personnel would have been required to report for work at 6:00 A.M. instead of 8:00, giving defendant notice of the ice on its walkways an hour before plaintiff fell. Liability for negligence cannot be based on the violation of an internal rule imposing a higher standard of care than the law, at least where there is no showing of detrimental reliance by the plaintiff on the rule (see Clarke v. New York City Tr. Auth., 174 A.D.2d 268, 275-276). Moreover, the forecast of the previous day did not predict anything like the ice emergency that actually occurred, and plaintiff's reliance thereon is not justifiable.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.