Opinion
2014-08219
06-10-2015
Osei Harper ANDERSON, appellant, v. LANDMARK AT EASTVIEW, INC., et al., respondents.
Gugliota & Ponzini, P.C., New Rochelle, N.Y. (John C. Gugliotta of counsel), for appellant. Gambeski & Frum, Elmsford, N.Y. (Donald L. Frum of counsel), for respondents.
Gugliota & Ponzini, P.C., New Rochelle, N.Y. (John C. Gugliotta of counsel), for appellant.
Gambeski & Frum, Elmsford, N.Y. (Donald L. Frum of counsel), for respondents.
WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
Opinion In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Hubert, J.), entered June 23, 2014, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
On January 28, 2009, the plaintiff was traversing a walkway on commercial property located at 777 Old Saw Mill River Road in Tarrytown, when he allegedly slipped and fell on ice after stepping over a small mound of snow thereon.“ ‘A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence’ ” (Haberman v. Meyer, 120 A.D.3d 1301, 1301, 993 N.Y.S.2d 80, quoting Cuillo v. Fairfield Prop. Servs., L.P., 112 A.D.3d 777, 778, 977 N.Y.S.2d 353 ; see Cruz v. Rampersad, 110 A.D.3d 669, 669, 972 N.Y.S.2d 302 ; Olivieri v. GM Realty Co., LLC, 37 A.D.3d 569, 569, 830 N.Y.S.2d 284 ). “Under the so-called ‘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” (Marchese v. Skenderi, 51 A.D.3d 642, 642, 856 N.Y.S.2d 680 ; see Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 810 N.Y.S.2d 121, 843 N.E.2d 748 ; McCurdy v. KYMA Holdings, LLC., 109 A.D.3d 799, 971 N.Y.S.2d 137 ; Smith v. Christ's First Presbyt. Church of Hempstead, 93 A.D.3d 839, 840, 941 N.Y.S.2d 211 ; Weller v. Paul, 91 A.D.3d 945, 947, 938 N.Y.S.2d 152 ). However, if a storm is ongoing, and a property owner elects to remove snow, it must do so with reasonable care or it could be held liable for creating a hazardous condition or exacerbating a natural hazard created by the storm (see Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d 1177, 944 N.Y.S.2d 640 ; Petrocelli v. Marrelli Dev. Corp., 31 A.D.3d 623, 817 N.Y.S.2d 913 ; Salvanti v. Sunset Indus. Park Assoc., 27 A.D.3d 546, 813 N.Y.S.2d 110 ; Chaudhry v. East Buffet & Rest., 24 A.D.3d 493, 808 N.Y.S.2d 239 ). In such an instance, a property owner moving for summary judgment in a slip-and-fall case must demonstrate, in support of its motion, that the snow removal efforts it undertook neither created nor exacerbated the allegedly hazardous condition which caused the plaintiff to fall (see Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d at 1177, 944 N.Y.S.2d 640 ).
The defendants failed to establish, prima facie, that the snow removal efforts undertaken by their nonparty snow removal contractor on their behalf did not create the allegedly hazardous icy condition which resulted in the plaintiff's injuries (see Ferguson v. Shu Ham Lam, 74 A.D.3d 870, 871–872, 903 N.Y.S.2d 101 ; Amendolace v. City of New York, 2 A.D.3d 659, 660, 768 N.Y.S.2d 642 ; see also Viera v. Rymdzionek, 112 A.D.3d 915, 977 N.Y.S.2d 390 ; Frank v. CPG Partners, L.P., 96 A.D.3d 900, 901, 946 N.Y.S.2d 628 ; Braun v. Weissman, 68 A.D.3d 797, 890 N.Y.S.2d 615 ). Since the defendants failed to meet their burden as the moving party in this case, the Supreme Court should have denied their motion, without regard to the sufficiency of the plaintiff's 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 ).