| McBryant v Pisa Holding Corp. |
| 2013 NY Slip Op 07013 [110 AD3d 1034] |
| October 30, 2013 |
| Appellate Division, Second Department |
| Thomas McBryant, Respondent, v Pisa HoldingCorporation et al., Appellants. |
—[*1] Simon Eisenberg & Baum, LLP, New York, N.Y. (Eric M. Baum and Brian Ullmanof counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County(Bayne, J.), dated March 23, 2012, as denied their motion for summary judgmentdismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
At approximately 8:00 a.m. on December 24, 2008, the plaintiff allegedly wasinjured in the parking lot of a gas station located on Hamilton Avenue in Brooklyn andowned by the defendants. Specifically, the plaintiff, while attempting to put air in hisvehicle's tire, allegedly slipped and fell on an icy condition near the air pumps. Theplaintiff commenced this action to recover damages for personal injuries, and thedefendants moved for summary judgment dismissing the complaint on the ground thatthey were not liable for the plaintiff's injuries because a storm was in progress at the timeof the accident. The Supreme Court denied the motion.
" 'A real property owner or a party in possession or control of real property will beheld liable for injuries sustained in a slip-and-fall accident involving snow and ice on itsproperty only when it created the alleged dangerous condition or had actual orconstructive notice of it" (Feolav City of New York, 102 AD3d 827, 827 [2013], quoting Cantwell v Fox Hill CommunityAssn., Inc., 87 AD3d 1106, 1106 [2011]). A defendant moving for summaryjudgment must establish, prima facie, that it neither created the snow and ice conditionnor had actual or constructive notice of it, and may sustain this burden by presentingevidence that there was a storm in progress at the time of the plaintiff's accident (see Meyers v Big Six Towers,Inc., 85 AD3d 877, 877-878 [2011]).
Here, the defendants failed to demonstrate their prima facie entitlement to judgmentas a matter of law based on the storm in progress rule. In support of their motion, thedefendants submitted printouts from a website dedicated to weather reporting called the"Weather Underground" which were not certified as business records and thusinadmissible (see CPLR 4518 [a]). They also submitted the plaintiff's depositiontestimony and certified climatological records from the National Oceanic andAtmospheric Administration's National Climatic Data Center. The certified [*2]climatological data, inter alia, indicated that less thanone-half inch of precipitation fell on December 24, 2008, and that which did fall was inthe form of rain and mist. The minimum temperature on that date was 31 degreesFahrenheit and the average temperature was 45 degrees Fahrenheit. The data furtherindicated that as of 7:00 a.m. on December 24, 2008, two inches of snow were on theground. There had been a snowfall of 4.4 inches on December 19, and lesser amounts ofapproximately one inch on December 20 and again on December 21, but it did not snowat all on December 24. This evidence, combined with the plaintiff's deposition testimonythat it was clear and cold at approximately 8:00 a.m. on December 24, 2008, and that, ashe was driving into the gas station parking lot, he had observed patches of ice "allaround," was insufficient to establish that the storm in progress rule applied and that theice upon which the plaintiff slipped was the result of an ongoing storm as opposed to anaccumulation of ice from the prior snowfalls (see Abramo v City of Mount Vernon, 103 AD3d 760, 761[2013]; Kantor v Leisure GlenHomeowners Assn., Inc., 95 AD3d 1177 [2012]; Lester v Ackerman, 82 AD3d847 [2011]). Since the defendants did not sustain their prima facie burden, we neednot review the sufficiency of the plaintiff's opposition papers (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Lester v Ackerman, 82AD3d at 847-848; Caldwell vS&S Levittown, LLC, 70 AD3d 881, 881-882 [2010]).
Accordingly, the Supreme Court properly denied the defendants' motion for summaryjudgment dismissing the complaint. Mastro, J.P., Dillon, Angiolillo and Chambers, JJ.,concur.