Opinion
2018–14407 Index No. 52378/16
07-28-2021
Dennis R. JOHNSON, appellant, v. PAWLING CENTRAL SCHOOL DISTRICT, respondent.
Grogan & Souto, P.C., Goshen, N.Y. (Edward P. Souto of counsel), for appellant. Catania, Mahon, Milligram & Rider, PLLC, Newburgh, N.Y. (Ari I. Bauer of counsel), for respondent.
Grogan & Souto, P.C., Goshen, N.Y. (Edward P. Souto of counsel), for appellant.
Catania, Mahon, Milligram & Rider, PLLC, Newburgh, N.Y. (Ari I. Bauer of counsel), for respondent.
HECTOR D. LASALLE, P.J., ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Edward T. McLoughlin, J.), dated November 13, 2018. The order 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.
The plaintiff commenced this action against the defendant to recover damages for injuries he allegedly sustained after slipping on black ice in a parking lot of the defendant's high school campus. Following discovery, the defendant moved for summary judgment dismissing the complaint. In an order dated November 13, 2018, the Supreme Court granted the motion. The plaintiff appeals.
The Supreme Court erred in finding that the storm in progress rule applied to the circumstances here. "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" ( Cuillo v. Fairfield Prop. Servs., L.P., 112 A.D.3d 777, 778, 977 N.Y.S.2d 353 ; see Ryan v. Beacon Hill Estates Coop., Inc., 170 A.D.3d 1215, 1215, 96 N.Y.S.3d 630 ). To be entitled to summary judgment dismissing the complaint, the defendant's prima face burden "may be met by presenting evidence that there was a storm in progress when the plaintiff allegedly slipped and fell" ( Fisher v. Kasten, 124 A.D.3d 714, 714, 2 N.Y.S.3d 189 ; see Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 877, 925 N.Y.S.2d 607 ). "Under the 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" ( Amato v. Brookhaven Professional Park L.P., 162 A.D.3d 620, 620, 77 N.Y.S.3d 496 ; see Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 735, 810 N.Y.S.2d 121, 843 N.E.2d 748 ; Fisher v. Kasten, 124 A.D.3d at 714, 2 N.Y.S.3d 189 ). While "[a] lull in the storm does not impose a duty to remove the accumulation of snow or ice before the storm ceases in its entirety" ( Fenner v. 1011 Rte. 109 Corp., 122 A.D.3d 669, 670, 996 N.Y.S.2d 341 ), "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" ( Mazzella v. City of New York, 72 A.D.3d 755, 756, 899 N.Y.S.2d 291 [internal quotation marks omitted]; see Rabinowitz v. Marcovecchio, 119 A.D.3d 762, 989 N.Y.S.2d 305 ).
Here, in support of its motion, the defendant relied upon, among other things, climatological data for Poughkeepsie Airport and Danbury Municipal Airport in Connecticut, as well as spotter reports of snowfall accumulation in neighboring towns. However, because these records were not certified as business records, they were inadmissible (see CPLR 4518[a] ; McBryant v. Pisa Holding Corp., 110 A.D.3d 1034, 1035, 973 N.Y.S.2d 757 ). In any event, the climatological data and spotter reports gathered from nearby areas were insufficient to demonstrate, prima facie, that the storm in progress rule applied (see Zempoalteca v. Ginsberg, 159 A.D.3d 1024, 1024, 70 N.Y.S.3d 389 ; Buroker v. Country View Estate Condominium Assn., Inc., 54 A.D.3d 795, 795, 864 N.Y.S.2d 468 ). Moreover, the climatological data was inconsistent and contradicted the parties' deposition testimony, transcripts of which the defendant also submitted in support of its motion, as to whether precipitation was falling at or near the time of the plaintiff's accident (see Yassa v. Awad, 117 A.D.3d 1037, 1038, 986 N.Y.S.2d 525 ). The defendant therefore failed to establish, prima facie, that the storm in progress rule applied.
Contrary to the defendant's contention, it failed to otherwise establish that it lacked constructive notice of the allegedly icy condition. "To provide constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it" ( Pryzywalny v. New York City Tr. Auth., 69 A.D.3d 598, 599, 892 N.Y.S.2d 181 ). "To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" ( Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222 ). However, "[m]ere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice" ( Herman v. Lifeplex, LLC, 106 A.D.3d 1050, 1051, 966 N.Y.S.2d 473 ). Here, the testimony of the defendant's witness, at best, established the defendant's general inspection practices with respect to snow and ice on the defendant's property (see Nsengiyumva v. Amalgamated Warbasse Houses, Inc., 180 A.D.3d 799, 800, 115 N.Y.S.3d 912 ). Thus, absent specific evidence that this area was inspected prior to the plaintiff's fall, the defendant cannot rely on this testimony in meeting its prima facie burden (see Feola v. City of New York, 102 A.D.3d 827, 828, 958 N.Y.S.2d 208 ; cf. Farren v. Board of Educ. of City of N.Y., 119 A.D.3d 518, 519, 988 N.Y.S.2d 684 ).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint, regardless of 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 ; McBryant v. Pisa Holding Corp., 110 A.D.3d at 1036, 973 N.Y.S.2d 757 ).
LASALLE, P.J., MILLER, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.