| Meyers v Big Six Towers, Inc. |
| 2011 NY Slip Op 05239 [85 AD3d 877] |
| June 14, 2011 |
| Appellate Division, Second Department |
| Charles Meyers, Respondent, v Big Six Towers, Inc.,Appellant. |
—[*1] Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Queens County (McDonald, J.), dated December 2, 2010, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
The plaintiff commenced this action to recover damages for personal injuries he allegedlysustained on February 12, 2008, when he slipped and fell on snow and ice on a driveway parkinglot ramp at the defendant's premises. The defendant moved for summary judgment dismissing thecomplaint, arguing that the so-called "storm in progress" doctrine precluded recovery. TheSupreme Court denied the defendant's motion. We reverse.
As the proponent of the motion for summary judgment, the defendant had to establish, primafacie, that it neither created the snow and ice condition nor had actual or constructive notice ofthe condition (see Persaud v S & KGreen Groceries, Inc., 72 AD3d 778, 779 [2010]; Vasta v Home Depot, 25 AD3d 690 [2006]). Here, the defendantsustained this burden by presenting evidence that there was a storm in progress when the plaintifffell (see Sfakianos v Big Six Towers,Inc., 46 AD3d 665, 665 [2007]; Evans v MTA/New York City Tr. Auth., 41 AD3d 533,534 [2007];Mangieri v Prime Hospitality Corp., 251 AD2d 632, 633 [1998]).
Accordingly, the burden shifted to the plaintiff to raise a triable issue of fact as to whetherthe precipitation from the storm in progress was not the cause of his accident (see Alers v La Bonne Vie Org., 54AD3d 698 [2008]; DeVito vHarrison House Assoc., 41 AD3d 420 [2007]; Small v Coney Is. Site 4A-1 Houses, Inc., 28 AD3d 741 [2006]).To do so, the plaintiff was required to raise a triable issue of fact as to whether the accident wascaused by a slippery condition at the location where the plaintiff fell that existed prior to thestorm, as opposed to precipitation from the storm in progress, and that the defendant had actualor constructive notice of the preexisting condition (see generally DeVito v Harrison House Assoc., 41 AD3d 420[2007]; Alers v La Bonne Vie Org.,54 AD3d 698 [2008]). Here, [*2]the plaintiff failed to raise atriable issue of fact in this regard. The sworn statement of a nonparty witness merely referred tothe existence of icy patches within the parking lot, including the exit and entry ramps. Evidencethat there was ice in the general vicinity of the accident prior to the storm is insufficient to raise atriable issue of fact as to whether the defendant had actual or constructive notice of the conditionof the specific area within the parking lot where the plaintiff fell (see Alers v La Bonne Vie Org., 54AD3d 698 [2008]; Powell v CedarManor Mut. Hous. Corp., 45 AD3d 749 [2007]; DeVito v Harrison House Assoc., 41 AD3d 420 [2007]; Robinson v Trade Link Am., 39 AD3d616 [2007]; Small v Coney Is. Site4A-1 Houses, Inc., 28 AD3d 741 [2006]; Reagan v Hartsdale Tenants Corp., 27 AD3d 716 [2006];Dowden v Long Is. R.R., 305 AD2d 631 [2003]; Zoutman v Goshen Cent. SchoolDist., 300 AD2d 656 [2002]). Therefore, the defendant's motion for summary judgmentdismissing the complaint should have been granted. Mastro, J.P., Angiolillo, Chambers andCohen, JJ., concur.