Summary
In Whitt v St. John's Episcopal Hospital (258 AD2d 648, 648-649 [2d Dept 1999]), the court granted defendant's motion for summary judgment when the evidence established that plaintiff's fall on ice within defendant's premises occurred in the early morning and only a few hours after the cessation of a snow storm, which storm ceased late in the evening.
Summary of this case from Rodriguez v. City of Hous.Opinion
February 22, 1999
Appeal from the Supreme Court, Nassau County (DeMaro, J.).
Ordered that the order is reversed, on the law, with costs, the defendant's motion for summary judgment is granted, and the complaint is dismissed.
The plaintiff Michael Whitt, a milk deliveryman, slipped and fell on snow and ice which had accumulated on a pathway in a senior citizen housing complex owned by the defendant. He cut his hand on a shard of glass from a broken milk bottle. The defendant's motion for summary judgment was supported by climatological records which tended to establish that precipitation in the form of snow or ice pellets had begun the previous day and had not completely ceased until between 10 and 11 P.M. in the evening. The accident occurred at approximately 7:30 A.M. the next morning. The injured plaintiff testified in his deposition that the storm had ceased only 5 or 6 hours before the accident.
As a general rule, the owner or proprietor of nonresidential premises may await the end of a snow or ice storm and for a reasonable time thereafter before undertaking protective measures to correct storm-created, hazardous conditions caused by accumulated ice and snow upon its outside walks and steps (see generally, Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972; IA N Y PJI3d 442-443; 86 N.Y. Jur, Premises Liability, § 300). Here, the record established that the storm ceased late in the evening and that the accident happened in the early morning hours. This evidence was sufficient to establish a prima facie right to judgment as a matter of law (Preuschoff v. Wank, 16 A.D.2d 690; cf., Valentine v. City of New York, 86 A.D.2d 381, affd 57 N.Y.2d 932).
The plaintiffs, in opposing this motion, relied primarily on speculation that the icy condition might have been exacerbated in some way by the maintenance work done by agents of the defendant during the progress of the ice storm. However; there is "no evidence that the defendant['s] * * * cleaning operation either caused or created the [condition] upon which the plaintiff slipped" (Bonfrisco v. Marlib Corp., 30 A.D.2d 655, affd 24 N.Y.2d 817; see also, Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, supra). The plaintiffs' submissions failed to reveal the existence of a triable issue of fact, and the defendant was therefore entitled to summary judgment.
Bracken, J. P., Santucci, Friedmann and Florio, JJ., concur.