| Wei Wen Xie v Ye Jiang Yong |
| 2013 NY Slip Op 07167 [111 AD3d 617] |
| November 6, 2013 |
| Appellate Division, Second Department |
| Wei Wen Xie, Appellant, v Ye Jiang Yong,Respondent. |
—[*1] Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, Melville, N.Y. (ElizabethGelfand Kastner of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Taylor, J.), dated April 13, 2012, whichgranted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when he slipped and fell on ice in front of thedefendant's residence at 8:15 a.m. on the morning of February 11, 2010. The defendanttestified at his deposition that during the evening of February 10, 2010, he shoveled thesidewalk in front of his house for about an hour between the hours of 5:00 p.m. and 8:00p.m., and when he was done he salted the sidewalk to prevent the formation of ice.However, additional snow accumulated later that night.
The defendant moved for summary judgment based on the "storm in progress" rule.In support of his motion, he offered evidence that it did not stop snowing until aroundmidnight on February 10, 2010, and contended that the accident occurred before he had areasonable time after the cessation of the storm to remove any additional snow or ice thathad accumulated after his initial snow removal efforts. In opposition, the plaintiff arguedthat the defendant had failed to establish that the snow removal efforts he undertook onthe evening of February 10, 2010, did not cause, create, or exacerbate the dangerouscondition which caused the accident. In support of his position, the plaintiff relied on anunsworn expert's report, which concluded that by shoveling snow from the sidewalk infront of his residence, the defendant exposed ice which had formed underneath the snow.The Supreme Court granted the defendant's motion, concluding that the accidentoccurred before the defendant had an adequate amount of time to remedy any hazardoussnow and ice condition caused by the storm.
"Under the so-called 'storm in progress' rule, a property owner will not be heldresponsible for accidents occurring as a result of the accumulation of snow and ice on itspremises until an adequate period of time has passed following the cessation of the stormto allow the owner an opportunity to ameliorate the hazards caused by the storm" (Marchese v Skenderi, 51AD3d 642, 642 [2008]; seeSolazzo v New York City Tr. Auth., 6 NY3d 734 [2005]; McCurdy vKYMA Holdings, LLC, 109 [*2]AD3d 799 [2d Dept2013]; Smith v Christ's FirstPresbyt. Church of Hempstead, 93 AD3d 839, 840 [2012]). A personresponsible for maintaining property is not under a duty to remove ice and snow until areasonable time after the cessation of the storm (see Mandel v City of New York,44 NY2d 1004 [1978]; Drake v Prudential Ins. Co., 153 AD2d 924 [1989]).However, once a property owner elects to engage in snow removal activities, the ownermust act with reasonable care so as to avoid creating a hazardous condition orexacerbating a natural hazard created by the storm (see Cotter v Brookhaven Mem. Hosp. Med. Ctr., Inc., 97 AD3d524 [2012]; Kantor vLeisure Glen Homeowners Assn., Inc., 95 AD3d 1177 [2012]; Petrocelli v Marrelli Dev.Corp., 31 AD3d 623, 624 [2006]).
Here, the defendant's deposition testimony established, prima facie, that he exercisedreasonable care in undertaking snow removal efforts while the storm was still in progresson the evening of February 10, 2010, and that his efforts neither created a hazardouscondition nor exacerbated a natural hazard created by the storm (see Smith v Hariri Realty Assoc.,Inc., 109 AD3d 897 [2d Dept 2013]; Bi Chan Lin v Po Ying Yam, 62 AD3d 740, 741 [2009];Kaplan v DePetro, 51AD3d 730, 731 [2008]). The defendant also established, prima facie, that areasonably sufficient time had not elapsed after the cessation of the storm to permit himto remove any additional snow or ice that had accumulated after his initial snow removalefforts (see McCurdy v KYMA Holdings, LLC, 109 AD3d at 800; Smith vChrist's First Presbyt. Church of Hempstead, 93 AD3d at 839-840; Whitt v St.John's Episcopal Hosp., 258 AD2d 648, 648-649 [1999]). In opposition, the plaintifffailed to submit evidence, in admissible form, to support his claim that an issue of factexists as to whether the defendant's snow removal efforts created or exacerbated thecondition which caused the accident.
Accordingly, the Supreme Court properly granted the defendant's motion forsummary judgment dismissing the complaint. Leventhal, J.P., Roman, Miller andHinds-Radix, JJ., concur.