| McCurdy v KYMA Holdings, LLC |
| 2013 NY Slip Op 05802 [109 AD3d 799] |
| September 11, 2013 |
| Appellate Division, Second Department |
| Karen McCurdy, Respondent, v KYMA Holdings,LLC, Appellant. |
—[*1] Michael S. Lamonsoff, PLLC, New York, N.Y. (Craig Phemister and Stacey Haskelof counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Kings County (Schmidt, J.), dated February 23, 2012, whichdenied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionfor summary judgment dismissing the complaint is granted.
On February 17, 2010, at approximately 7:00 a.m., the plaintiff allegedly was injuredwhen she slipped and fell on ice located in front of the apartment building where sheresided. Thereafter, the plaintiff commenced this action against the defendant, the ownerof the building. The Supreme Court denied the defendant's motion for summaryjudgment dismissing the complaint.
"A defendant may be held liable for a dangerous condition on its premises caused bythe accumulation of snow or ice upon a showing that it had actual or constructive noticeof the condition, and that a reasonably sufficient time had lapsed since the cessation ofthe storm to take protective measures" (Sabatino v 425 Oser Ave., LLC, 87 AD3d 1127, 1128[2011]; see Roofeh v 141 GreatNeck Rd. Condominium, 85 AD3d 893, 893-894 [2011]; Robles v City ofNew York, 255 AD2d 305, 306 [1998]). "Under the 'storm in progress' rule, aproperty owner will not be held liable for accidents occurring as a result of theaccumulation of snow or ice on its premises until an adequate period of time has passedfollowing the cessation of the storm, within which time the owner has the opportunity toameliorate the hazards caused by the storm" (Smith v Christ's First Presbyt. Church of Hempstead, 93 AD3d839, 840 [2012]; seeSolazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]; Weller v Paul, 91 AD3d945, 947 [2012]).
Here, the defendant established its prima facie entitlement to judgment as a matter oflaw by submitting evidence demonstrating that it had no actual or constructive notice ofthe allegedly dangerous condition (see Brandon v Hallivis, 67 AD3d 618, 619 [2009]; Lee-Pack v 1 Beach 105 Assoc.,LLC, 29 AD3d 644, 645 [2006]; Ronconi v Denzel Assoc., 20 AD3d 559, 560 [2005]).Moreover, the defendant demonstrated, prima facie, that a reasonably sufficient time hadnot elapsed after the [*2]precipitation that resulted in theicy condition ended to permit it to remedy the allegedly dangerous condition prior to theplaintiff's accident in the early morning hours (see Brandon v Hallivis, 67 AD3dat 619; Lee-Pack v 1 Beach 105 Assoc., LLC, 29 AD3d at 645; Whittv St. John's Episcopal Hosp., 258 AD2d 648, 648-649 [1999]; Urena v NewYork City Tr. Auth., 248 AD2d 377, 378 [1998]).
In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). The deposition testimony of a personwho witnessed the accident revealed that "stickable icy pellets" were falling on themorning of the accident. Furthermore, the plaintiff failed to establish that the defendanteither created or exacerbated the condition upon which the plaintiff slipped (seeWhitt v St. John's Episcopal Hosp., 258 AD2d at 649).
Accordingly, the Supreme Court should have granted the defendant's motion forsummary judgment dismissing the complaint. Dillon, J.P., Roman, Miller andHinds-Radix, JJ., concur.