Opinion
2014-03-21
Francine MANN, Plaintiff–Respondent, v. WEGMANS FOOD MARKETS, INC., Defendant–Appellant.
The Law Firm of Janice M. Iati, P.C., Rochester (Janice M. Iati of Counsel), for Defendant–Appellant. Schiano Law Office, P.C., Rochester (Charles A. Schiano, Jr., of Counsel), for Plaintiff–Respondent.
The Law Firm of Janice M. Iati, P.C., Rochester (Janice M. Iati of Counsel), for Defendant–Appellant. Schiano Law Office, P.C., Rochester (Charles A. Schiano, Jr., of Counsel), for Plaintiff–Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI AND SCONIERS, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries she sustained when she slipped and fell on ice in defendant's parking lot. Defendant moved for summary judgment dismissing the complaint, contending that it had no duty to correct the hazardous condition of the parking lot because the storm had ceased for only 15 minutes at the time of the accident, and Supreme Court denied the motion. We reverse.
We conclude that defendant met its initial burden by submitting evidence that a storm was in progress at the time of the accident and, thus, that defendant “had no duty to remove the snow and ice ‘until a reasonable time ha[d] elapsed after cessation of the storm’ ” ( Glover v. Botsford, 109 A.D.3d 1182, 1183, 971 N.Y.S.2d 771). The accident occurred at approximately 5:15 p.m. on December 22, 2010, when plaintiff exited defendant's store. According to defendant's expert meteorologist and the weather reports upon which he relied, light snow mixed with a freezing drizzle fell from 3:00 to at least 5:00 p.m. Contrary to plaintiff's contention, she failed to raise an issue of fact by submitting evidence that the precipitation had eased or ceased at the time of her accident. “ ‘[E]ven if there was a lull or break in the storm around the time of plaintiff's accident, this does not establish that defendant had a reasonable time after the cessation of the storm to correct hazardous snow or ice-related conditions' ” ( Baia v. Allright Parking Buffalo, Inc., 27 A.D.3d 1153, 1154, 811 N.Y.S.2d 843;see Brierley v. Great Lakes Motor Corp., 41 A.D.3d 1159, 1160, 837 N.Y.S.2d 451). Plaintiff further failed to raise an issue of fact whether the ice that caused the accident existed prior to the storm ( see Chapman v. Pyramid Co. of Buffalo, 63 A.D.3d 1623, 1624, 881 N.Y.S.2d 246;Martin v. Wagner, 30 A.D.3d 733, 735, 816 N.Y.S.2d 243).
In view of our decision, we do not address defendant's contention concerning plaintiff's affidavit submitted in opposition to the motion.
It is hereby ORDERED that the amended order so appealed from is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.