| Grinnell v Phil Rose Apts., LLC |
| 2009 NY Slip Op 02279 [60 AD3d 1256] |
| March 26, 2009 |
| Appellate Division, Third Department |
| Irene Grinnell, Appellant, v Phil Rose Apartments, LLC,Respondent. |
—[*1] Law Office of Michael M. Emminger, Albany (Megan B. Van Aken of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Krogmann, J.), entered January 18,2008 in Warren County, which granted defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff fractured her right leg when, at approximately 1:30 p.m. on December 12, 2005, sheallegedly slipped on ice and fell off the porch of a building owned by defendant where she rentedan apartment. She commenced this negligence action and, following disclosure, defendantmoved for summary judgment dismissing the complaint. Supreme Court granted the motion,finding, among other things, that the accident occurred during a storm in progress and thatplaintiff failed to raise a factual issue as to whether an icy condition existed on the porch prior tothe storm. Plaintiff appeals arguing that factual issues exist both as to whether there was a stormin progress and whether she fell on ice that had existed for several days.
"[L]andowners have a reasonable period of time to take corrective action of storm-relateddangerous conditions after the cessation of a storm" (Mosquera v Orin, 48 AD3d 935, 936 [2008] [internal quotationmarks and citations omitted]; see Lyons v Cold Brook Cr. Realty Corp., 268 AD2d 659,659-660 [2000]). Defendant submitted an affidavit from a meteorologist stating that, frommidnight until 3:00 p.m. on the day of the accident, a snowstorm moved across the relevantregion resulting in intermittent light snow that accumulated about one inch during [*2]that time. This constituted adequate evidence that there was a stormin progress at the time of the accident with sufficient snowfall to cause a slippery condition, andthus the burden shifted to plaintiff to rebut this proof. Plaintiff's meteorologist, while focusing onlarger snowstorms that occurred on December 9, 2005 and shortly after the accident starting at4:30 p.m. on December 12, 2005, acknowledged that "light snow [fell] off and on through theday on December 12, 2005." Moreover, plaintiff, although she recalled the most significantprecipitation as falling during the night before the accident in the form of ice, indicated at herdeposition that she thought it was snowing lightly when she fell and remembered light drizzle asshe was sitting on the ground waiting for the ambulance. This evidence reveals lulls in the storm,but a short lull in the course of a storm does not remove a case from the storm in progressdoctrine (see Martin v Wagner, 30AD3d 733, 734-735 [2006]; Krutz v Betz Funeral Home, 236 AD2d 704, 705[1997], lv denied 90 NY2d 803 [1997]). We thus agree with Supreme Court that a stormwas in progress when plaintiff fell.
"The burden therefore shifted to plaintiff[ ] to establish that the accident was caused by icethat existed prior to the storm . . . rather than precipitation from the storm inprogress" (Mosquera v Orin, 48 AD3d at 936 [citations omitted]). Plaintiff'smeteorologist opined that the icy condition was caused by a storm that produced about six inchesof snow three days before the accident. However, plaintiff testified that the slippery conditionthat caused her accident resulted from the storm that had started the night before the accident.And, although she resided at the premises and used the subject porch to enter and exit herapartment, she did not testify or submit an affidavit indicating that the condition that caused herfall existed during the time between the December 9, 2005 storm and the December 12, 2005storm that was in progress when she fell. She agreed that she had made no complaints todefendant about the condition of the porch between such dates. Under these circumstances, theproof was insufficient to raise a triable issue that a preexisting condition caused the accident(see id. at 937; Parker v RustPlant Servs., Inc., 9 AD3d 671, 673 [2004]).
Mercure, J.P., Rose, Kane and Malone Jr., JJ., concur. Ordered that the order is affirmed,with costs.