Clara Luz Vargas Batista v Allerton Ave Estates, LLC, et al.
Categories
Attorneys and Parties
Brief Summary
Premises liability involving a sidewalk slip-and-fall during winter conditions and application of the storm in progress rule.
The Supreme Court, Kings County, granted the defendants' motion for summary judgment and dismissed the complaint based on the storm in progress rule.
The Appellate Division reversed the order granting summary judgment dismissing the complaint.
Although the defendants showed that a snowstorm was underway when the plaintiff fell, they failed to eliminate triable issues of fact as to whether the icy condition came from a prior storm rather than the ongoing storm and whether they had constructive notice of that pre-existing condition.
Background
The plaintiff alleged that on February 7, 2021, at about 12:10 p.m., she slipped and fell on snow and ice on a sidewalk abutting premises owned and/or managed by the defendants. She claimed the defendants were negligent in maintaining the sidewalk and in creating a dangerous condition through improper snow removal efforts.
Lower Court Decision
The lower court accepted the defendants' argument that the storm in progress rule barred liability because the accident occurred while a snowstorm was ongoing, and it granted summary judgment dismissing the complaint.
Appellate Division Reversal
The Appellate Division held that the defendants did not meet their prima facie burden for summary judgment. Even if a storm was in progress, their proof did not rule out that the plaintiff slipped on ice left from an earlier storm or establish the absence of constructive notice. Because the defendants failed to make the required initial showing, the motion should have been denied without regard to the plaintiff's opposition papers.
Legal Significance
This decision underscores that defendants relying on the storm in progress rule must do more than show bad weather at the time of the accident. They must also address whether the hazardous ice or snow predated the ongoing storm and whether they had notice of that earlier condition. If they fail to eliminate those factual issues, summary judgment is improper.
An ongoing storm does not automatically shield a property owner from liability. Where evidence leaves open the possibility that a plaintiff fell on a pre-existing icy condition from an earlier storm, and that the owner had constructive notice of it, the case may proceed.