| Mazzella v City of New York |
| 2010 NY Slip Op 03078 [72 AD3d 755] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Wayne Mazzella, Jr., Appellant, v City of New York,Respondent. (Action No. 1.) Wayne Mazzella, Sr., Individually and as Administrator of theEstate of Joseph Mazzella, Deceased, Appellant, v City of New York, Respondent, et al.,Defendant. (Action No. 2.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo andElizabeth I. Freedman of counsel), for respondent.
In two related actions to recover damages for personal injuries (action No. 1) and wrongfuldeath, etc. (action No. 2), which were joined for trial, the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Richmond County (Aliotta, J.), datedOctober 30, 2008, as granted that branch of the motion of the defendant City of New York whichwas for summary judgment dismissing the complaint in action No. 1 and dismissing thecomplaint in action No. 2 insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
On January 14, 2004, between 10:30 p.m. and 11:00 p.m., the plaintiff in action No. 1,Wayne Mazzella, Jr., was driving his car north on Korean Veterans Parkway in Staten Islandwith his 15-year-old brother Joseph Mazzella, who was in the passenger seat. Freddy Alvaro wasdriving his car south on Korean Veterans Parkway at the same time. Both Alvaro and WayneMazzella, Jr., testified at their depositions that it was snowing heavily, and that conditions werepoor. Suddenly, the vehicle driven by Wayne Mazzella, Jr., veered across the median, and thefront of Alvaro's car collided with the passenger side of Mazzella's vehicle. Joseph Mazzella waskilled in the collision. Wayne Mazzella, Jr., was injured, and he testified that he had no memoryof the accident.
Wayne Mazzella, Jr., commenced an action against the defendant City of New York, andWayne Mazzella, Sr., as administrator of the estate of Joseph Mazzella and on his own behalf,commenced [*2]a separate action against both the City andWayne Mazzella, Jr. The actions were joined for trial. The City moved, inter alia, for summaryjudgment dismissing the complaint in action No. 1 and dismissing the complaint in action No. 2insofar as asserted against it, arguing that it was entitled to summary judgment because theaccident occurred while the storm was still in progress. The Supreme Court, among other things,granted that branch of the City's motion which was for summary judgment dismissing thecomplaint in action No. 1 and dismissing the complaint in action No. 2 insofar as assertedagainst it. The plaintiffs in both actions appeal, and we affirm.
A municipality is obligated to keep the streets within its jurisdiction in a reasonably safecondition for travel (see Gonzalez v City of New York, 148 AD2d 668, 670 [1989];Hooker v Town of Hanover, 247 App Div 623, 625 [1936]). "To render a municipalityliable for an injury caused by the presence of snow and ice on the streets," the plaintiff mustestablish that "the condition constitutes an unusual or dangerous obstruction to travel and thateither the municipality caused the condition or a sufficient time had elapsed to afford apresumption of the existence of the condition and an opportunity to effect its removal"(Gonzalez v City of New York, 148 AD2d at 670 [citations omitted]; see Williams vCity of New York, 214 NY 259, 264 [1915]).
Under the storm in progress rule, the City generally cannot be held liable for injuriessustained as a result of slippery conditions that occur during an ongoing storm, or for areasonable time thereafter (see Solazzov New York City Tr. Auth., 6 NY3d 734 [2005]; Skouras v New York City Tr. Auth., 48 AD3d 547 [2008]; seealso Mandel v City of New York, 44 NY2d 1004, 1005 [1978]). A lull in the storm does notimpose a duty on the City to remove the accumulation of snow or ice before the storm ceases inits entirety (see DeStefano v City ofNew York, 41 AD3d 528 [2007]). But "if the storm has passed and precipitation hastailed off to such an extent that there is no longer any appreciable accumulation, then therationale for continued delay abates, and commonsense would dictate that the rule not beapplied" (Powell v MLG Hillside Assoc., 290 AD2d 345, 345-346 [2002]; see Dancy v New York City Hous.Auth., 23 AD3d 512 [2005]).
Here, the City demonstrated its prima facie entitlement to judgment as a matter of law bysubmitting evidence that the storm was still in progress at the time of the accident. In opposition,the plaintiffs failed to raise a triable issue of fact. Therefore, the Supreme Court properly grantedthat branch of the City's motion which was for summary judgment dismissing the complaints inboth actions insofar as asserted against it (see generally Zuckerman v City of New York,49 NY2d 557, 562 [1980]).
In view of the foregoing, we do not address the parties' remaining contentions. Skelos, J.P.,Santucci, Lott and Sgroi, JJ., concur.