Opinion
2013-02785
11-12-2014
Paula RYAN, et al., appellants, v. TACONIC REALTY ASSOCIATES, et al., defendants third-party plaintiffs-respondents, L & L Enterprises 123, LLC, third-party defendant-respondent, et al., third-party defendant.
Basch & Keegan, LLP, Kingston, N.Y. (Derek J. Spada of counsel), for appellants. Goldberg Segalla, White Plains, N.Y. (William T. O'Connell of counsel), for defendants third-party plaintiffs-respondents. Law Office of Marc D. Orloff, P.C. (Steven A. Kimmel, Washingtonville, N.Y., of counsel), for third-party defendant-respondent L & L Enterprises 123, LLC.
Basch & Keegan, LLP, Kingston, N.Y. (Derek J. Spada of counsel), for appellants.
Goldberg Segalla, White Plains, N.Y. (William T. O'Connell of counsel), for defendants third-party plaintiffs-respondents.
Law Office of Marc D. Orloff, P.C. (Steven A. Kimmel, Washingtonville, N.Y., of counsel), for third-party defendant-respondent L & L Enterprises 123, LLC.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
Opinion In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Rosa, J.), dated January 25, 2013, which granted that branch of the cross motion of the defendants third-party plaintiffs, Taconic Realty Associates and Page Park Associates, LLC, which was for summary judgment dismissing the complaint and that branch of the motion of the third-party defendant L & L Enterprises 123, LLC, which was for summary judgment dismissing the third-party complaint insofar as asserted against it.
ORDERED that the appeal from so much of the order as granted that branch of the motion of the third-party defendant L & L Enterprises 123, LLC, which was for summary judgment dismissing the third-party complaint insofar as asserted against it is dismissed, as the plaintiff is not aggrieved by that portion of the order (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ); and it is further,
ORDERED that the order is affirmed insofar as reviewed, with one bill of costs to the defendants third-party plaintiffs-respondents and the third-party defendant-respondent appearing separately and filing separate briefs.
During the morning of December 31, 2008, the plaintiff Paula Ryan (hereinafter the injured plaintiff) allegedly was injured after slipping and falling in the parking lot of her workplace in Hyde Park. In July 2010, the injured plaintiff, and her husband suing derivatively, commenced this action against Taconic Realty Associates and Page Park Associates, LLC (hereinafter together the defendants third-party plaintiffs), which thereafter commenced a third-party action against, among others, L & L Enterprises 123, LLC (hereinafter the third-party defendant) the company that was hired to perform snow removal services at the subject property. The Supreme Court granted the cross motion of the defendants third-party plaintiffs for summary judgment dismissing the complaint and the motion of the third-party defendant for summary judgment dismissing the third-party complaint insofar as asserted against it. The plaintiffs appeal.
As the proponents of the cross motion for summary judgment, the defendants third-party plaintiffs had the burden of establishing, prima facie, that they neither created the snow and ice condition nor had actual or constructive notice of the condition (see Smith v. Christ's First Presbyt. Church of Hempstead, 93 A.D.3d 839, 941 N.Y.S.2d 211 ; Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 925 N.Y.S.2d 607 ). This burden may be satisfied by presenting evidence that there was a storm in progress when the plaintiff allegedly slipped and fell (see Huan Nu Lu v. New York City Tr. Auth., 113 A.D.3d 818, 978 N.Y.S.2d 907 ; Smith v. Christ's First Presbyt. Church of Hempstead, 93 A.D.3d at 839, 941 N.Y.S.2d 211 ; Meyers v. Big Six Towers, Inc., 85 A.D.3d at 877, 925 N.Y.S.2d 607 ; Sfakianos v. Big Six Towers, Inc., 46 A.D.3d 665, 846 N.Y.S.2d 584 ). Under the “storm in progress rule,” a landowner generally cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter (see Abramo v. City of Mount Vernon, 103 A.D.3d 760, 761, 959 N.Y.S.2d 725 ; Smilowitz v. GCA Serv. Group, Inc., 101 A.D.3d 1101, 957 N.Y.S.2d 391 ; Weller v. Paul, 91 A.D.3d 945, 947, 938 N.Y.S.2d 152 ; Mazzella v. City of New York, 72 A.D.3d 755, 756, 899 N.Y.S.2d 291 ). The transcript of the deposition testimony of the injured plaintiff and the certified meteorological records submitted by the defendants third-party plaintiffs in support of their cross motion established, prima facie, that it was snowing at the time of the occurrence and, accordingly, that the “storm in progress” rule applies here. In opposition, the plaintiffs raised what clearly appear to be feigned issues of fact intended solely to avoid the consequences of the injured plaintiff's prior admission that the snow had started falling before the accident (see Marchese v. Skenderi, 51 A.D.3d 642, 856 N.Y.S.2d 680 ; Nieves v. JHH Transp., LLC, 40 A.D.3d 1060, 836 N.Y.S.2d 697 ).
Accordingly, the Supreme Court properly granted that branch of the cross motion of the defendants third-party plaintiffs which was for summary judgment dismissing the complaint.