Opinion
2014-03-28
Kathleen M. KORTHALS, Plaintiff–Respondent, v. LCB CAPITAL, LLC, Defendant–Appellant.
Kenney Shelton Liptak Nowak LLP, Buffalo (Amanda L. Machacek of Counsel), for Defendant–Appellant. Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff–Respondent.
Kenney Shelton Liptak Nowak LLP, Buffalo (Amanda L. Machacek of Counsel), for Defendant–Appellant. Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY AND SCONIERS, JJ.
MEMORANDUM:
In this slip and fall personal injury action, defendant property owner appeals from an order denying its motion for summary judgment dismissing the complaint. According to defendant, Supreme Court should have granted its motion because there was a storm in progress when plaintiff slipped and fell on ice outside its apartment building in Kenmore, and it therefore had no duty to remedy the allegedly dangerous condition prior to the accident ( 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;Brierley v. Great Lakes Motor Corp., 41 A.D.3d 1159, 1160, 837 N.Y.S.2d 451). We conclude that the court properly denied defendant's motion.
The meteorological records submitted by defendant in support of its motion establish that the alleged storm, which consisted of intermittent freezing rain and mist, ended no later than 4:52 a.m., when the last precipitation was recorded in the area. Plaintiff fell approximately four hours later, and radar imagery submitted by defendant showed that there were “mainly clear skies” in Kenmore at the time of the accident. In addition, the last freezing rain advisory was cancelled at 6:49 a.m., and there had been no freezing rain since 12:27 a.m. We thus agree with plaintiff that “[d]efendant[']s[ ] submissions establish that the storm had ended at the time of plaintiff's fall, and there is a triable issue of fact whether a reasonable period of time had passed since the abatement of the storm to impose a duty on the defendant[ ]” to remedy the dangerous icy condition caused by the alleged storm ( Boarman v. Siegel, Kelleher and Kahn, 41 A.D.3d 1247, 1248, 837 N.Y.S.2d 822; see Alexis v. City of New York, 111 A.D.3d 527, 528, 975 N.Y.S.2d 334;Helms v. Regal Cinemas, Inc., 49 A.D.3d 1287, 1288, 852 N.Y.S.2d 882). Inasmuch as defendant failed to meet its initial burden, we need not review the sufficiency of plaintiff's opposing 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).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.