Opinion
November 13, 1998
Appeal from Order of Supreme Court, Erie County, LaMendola, J. — Summary Judgment.
Present — Green, J. P., Pine, Wisner, Balio and Boehm, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant's motion seeking summary judgment dismissing the complaint. Defendant met its initial burden of establishing its entitlement to summary judgment by submitting proof that, at the time Sarvia Williams (plaintiff) fell, there was a snowstorm in progress. It is well settled that a landowner has no duty to remove snow and ice during a storm ( see, Siegel v. Molino, 236 A.D.2d 879; Cerra v. Perk Dev., 197 A.D.2d 851). Plaintiffs, however, raised a triable issue of fact with respect to that issue ( cf., Dunn v. 726 Main Pine, 255 A.D.2d 981 [decided herewith]. We reject defendant's contention that plaintiff's opposing affidavit is insufficient to defeat the motion ( cf., Andrews v. Porreca, 227 A.D.2d 940, 941). In any event, plaintiffs also offered an affidavit from a witness who averred that it had stopped snowing a few hours before plaintiff fell, thereby raising a triable issue of fact whether there was a snowstorm in progress at the time of the fad and, if not, whether a reasonable period of time had elapsed after the, cessation of the storm to impose a duty on defendant to remove the snow and ice ( see, Cerra v. Perk Dev., supra, at 879).