| Kantor v Leisure Glen Homeowners Assn., Inc. |
| 2012 NY Slip Op 03985 [95 AD3d 1177] |
| May 23, 2012 |
| Appellate Division, Second Department |
| Bernard Kantor et al., Respondents, v Leisure GlenHomeowners Association, Inc., Appellant. |
—[*1] The De Santis Law Firm, PLLC, Carle Place, N.Y. (Marc G. De Santis of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Suffolk County (Tanenbaum, J.), dated May 18, 2011, which deniedits motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
"Under the 'storm in progress rule,' a landowner 'generally cannot be held liable for injuriessustained as a result of slippery conditions that occur during an ongoing storm, or for areasonable time thereafter' " (Weller vPaul, 91 AD3d 945, 947 [2012], quoting Mazzella v City of New York, 72 AD3d 755, 756 [2010]; see Marchese v Skenderi, 51 AD3d642 [2008]). However, once a landowner elects to engage in snow removal activities, it isrequired to act with reasonable care so as to avoid creating a hazardous condition or exacerbatinga natural hazard created by the storm (see Chaudhry v East Buffet & Rest., 24 AD3d 493, 494 [2005]; Friedman v Stauber, 18 AD3d606, 606-607 [2005]; Grau v Taxter Park Assoc., 283 AD2d 551, 551-552 [2001]).
Contrary to the defendant's contention, it failed to demonstrate its prima facie entitlement tojudgment as a matter of law. The defendant failed to establish that the storm in progress ruleapplied herein, since the climatological data from a nearby town and the injured plaintiff'sdeposition testimony, both of which were submitted by the defendant in support of the motion,conflicted as to whether precipitation was falling at or near the time of the accident (see Lester v Ackerman, 82 AD3d847 [2011]; see also Calix v NewYork City Tr. Auth., 14 AD3d 583, 584 [2005]). Furthermore, the defendant failed toadequately demonstrate that the snow removal efforts it underook neither created nor exacerbatedthe allegedly hazardous condition which caused the injured plaintiff to fall (see Salvanti v Sunset Indus. ParkAssoc., 27 AD3d 546 [2006]; Chaudhry v East Buffet & Rest., 24 AD3d at 494).Since the defendant failed to sustain its prima facie burden, we need not consider the adequacy ofthe plaintiffs' submissions in opposition to the motion (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]; Lester v Ackerman, 82 AD3d at 847-848).[*2]
Accordingly, the Supreme Court properly denied thedefendant's motion for summary judgment dismissing the complaint. Mastro, A.P.J., Florio,Chambers and Roman, JJ., concur.