Opinion
12-07-2016
Vira ARONOV, appellant, v. ST. VINCENT'S HOUSING DEVELOPMENT FUND COMPANY, INC., et al., respondents.
Arkady Frekhtman, Brooklyn, N.Y. (Steven J. Smith of counsel), for appellant. Harrington, Ocko & Monk, White Plains, N.Y. (Adam G. Greenberg of counsel), for respondents.
Arkady Frekhtman, Brooklyn, N.Y. (Steven J. Smith of counsel), for appellant.
Harrington, Ocko & Monk, White Plains, N.Y. (Adam G. Greenberg of counsel), for respondents.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Saitta, J.), dated January 30, 2012, which granted the defendants' motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.
The plaintiff allegedly slipped and fell on ice on a sidewalk abutting the front entrance of an apartment building in Staten Island. The plaintiff commenced this personal injury action against the owner of the building and the building operators (hereinafter collectively the defendants). The defendants moved for summary judgment dismissing the complaint, arguing that the ice that caused the plaintiff to slip and fall was the result of a storm in progress, and that the hazardous condition was not exacerbated by their efforts to remove snow from the premises. The Supreme Court granted the defendants' motion, and the plaintiff appeals.
"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" (Rabinowitz v. Marcovecchio, 119 A.D.3d 762, 762, 989 N.Y.S.2d 305 [internal quotation marks omitted]; see Cotter v. Brookhaven Mem. Hosp. Med. Ctr., Inc., 97 A.D.3d 524, 524, 947 N.Y.S.2d 608 ; Weller v. Paul, 91 A.D.3d 945, 947, 938 N.Y.S.2d 152 ). However, "if 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" (Rabinowitz v. Marcovecchio, 119 A.D.3d at 762, 989 N.Y.S.2d 305 [internal quotation marks omitted] ).
If a property owner has elected to clear a sidewalk during a storm in progress, the owner is required to act with reasonable care and may be liable if its efforts create a hazardous condition or exacerbate a natural hazard created by the storm (see Yassa v. Awad, 117 A.D.3d 1037, 1038, 986 N.Y.S.2d 525 ; Chaudhry v. East Buffet & Rest., 24 A.D.3d 493, 494, 808 N.Y.S.2d 239 ; Gibbs v. Rochdale Vil., 282 A.D.2d 706, 707, 724 N.Y.S.2d 324 ). The mere failure of a defendant to remove all of the snow and ice, without more, does not establish that the defendant increased the risk of harm (see Spicehandler v. City of New York, 279 App.Div. 755, 108 N.Y.S.2d 754, affd. 303 N.Y. 946, 105 N.E.2d 632 ; see also Yen Hsia v. City of New York, 295 A.D.2d 565, 744 N.Y.S.2d 887 ; Lakhan v. Singh, 269 A.D.2d 427, 703 N.Y.S.2d 226 ; Delgado v. City of New York, 245 A.D.2d 540, 666 N.Y.S.2d 500 ).
Here, the defendants established, prima facie, that the icy condition that allegedly caused the plaintiff to fall was created by a storm in progress. The climatological records and expert affidavit submitted by the defendants showed that there was an ongoing storm, consisting of snow and freezing rain, at the time of the plaintiff's accident (see Scarlato v. Town of Islip, 135 A.D.3d 738, 739, 22 N.Y.S.3d 593 ; Dowden v. Long Is. R.R., 305 A.D.2d 631, 759 N.Y.S.2d 544 ). The defendants also demonstrated that their efforts to remove snow from the subject sidewalk did not create or exacerbate the icy condition (see Mullaney v. City of New York, 125 A.D.3d 948, 949, 5 N.Y.S.3d 146 ; Wei Wen Xie v. Ye Jiang Yong, 111 A.D.3d 617, 618, 974 N.Y.S.2d 113 ).
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff offered nothing more than conjecture and speculation as to how the defendants' efforts to remove snow from the sidewalk created or exacerbated the icy condition upon which she allegedly slipped and fell (see Krichevskaya v. City of New York, 30 A.D.3d 471, 472, 817 N.Y.S.2d 103 ). The evidence in the record does not support the plaintiff's assertion that the defendants' removal of snow from the sidewalk may have exposed a layer of bare ice beneath the snow (cf. Chaudhry v. East Buffet & Rest., 24 A.D.3d at 494, 808 N.Y.S.2d 239 ).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.