| Marchese v Skenderi |
| 2008 NY Slip Op 04326 [51 AD3d 642] |
| May 6, 2008 |
| Appellate Division, Second Department |
| Vincent Marchese, Respondent, v Albert Skenderi et al.,Appellants. |
—[*1] Bosco Bisignano & Mascolo, LLP, Staten Island, N.Y. (John Bosco and David Moreno ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Richmond County (McMahon, J.), dated June 4, 2007, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
On the afternoon of February 28, 2005, while snow was falling, the plaintiff, an employee ofthe City of New York Department of Environmental Protection, visited the defendants' house onStaten Island in an attempt to conduct a water meter inspection. While descending an exteriorstaircase from the defendants' house to the sidewalk, the plaintiff slipped and fell on a wet stepand was injured.
After the plaintiff commenced this action, the defendants moved for summary judgmentdismissing the complaint on the ground, inter alia, that the application of the so-called "storm inprogress" doctrine precluded recovery.
Under the so-called "storm in progress" rule, a property owner will not be held responsiblefor accidents occurring as a result of the accumulation of snow and ice on its premises until anadequate period of time has passed following the cessation of the storm to allow the owner anopportunity to ameliorate the hazards caused by the storm (see Dowden v Long Is. R.R.,305 AD2d [*2]631 [2003]). The deposition testimony of theplaintiff and the affidavit of a meteorologist, which the defendants submitted in support of theirmotion, established a prima facie case that it was snowing at the time of the occurrence andaccordingly that the "storm in progress" rule applies here. The plaintiff's affidavit submitted inopposition to the defendants' establishment, prima facie, of their entitlement to judgment as amatter of law, raised only feigned issues of fact intended solely to avoid the consequences of hisprior admission that the snow had started falling before the accident (see Nieves v JHH Transp., LLC, 40AD3d 1060 [2007]). Furthermore, the mere fact that an outdoor walkway becomes wet fromprecipitation is insufficient to establish the existence of a dangerous condition (see Cavorti vWinston, 307 AD2d 1018 [2003]). Here, in the absence of proof that the plaintiff slipped andfell as a result of something other than snow, the plaintiff has no cause of action against thedefendants (see Cavorti v Winston, 307 AD2d at 1019). Finally, contrary to the plaintiff'scontentions, the failure on the part of the defendants to install handrails did not constitute aviolation of the Administrative Code of the City of New York (see Nikolaidis v La Terna Rest., 40AD3d 827 [2007]). Lifson, J.P., Covello, Angiolillo and Leventhal, JJ., concur.