| Huan Nu Lu v New York City Tr. Auth. |
| 2014 NY Slip Op 00482 [113 AD3d 818] |
| January 29, 2014 |
| Appellate Division, Second Department |
| Huan Nu Lu, Appellant, v New York City TransitAuthority, Respondent. |
—[*1]
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Gavrin, J.), entered July 6, 2012, whichgranted the defendant's motion for summary judgment dismissing the complaint anddenied, as academic, her cross motion pursuant to CPLR 3124 to compel disclosure.
Ordered that the order is affirmed, without costs or disbursements.
As the proponent of the motion for summary judgment, the defendant had the burdenof establishing, prima facie, that it neither created the snow and ice condition whichallegedly caused the plaintiff to fall nor had actual or constructive notice of thatcondition (see Smith v Christ'sFirst Presbyt. Church of Hempstead, 93 AD3d 839 [2012]; Meyers v Big Six Towers, Inc.,85 AD3d 877 [2011]). The defendant could satisfy this burden by presentingevidence that there was a storm in progress when the plaintiff allegedly slipped and fell(see Smith v Christ's FirstPresbyt. Church of Hempstead, 93 AD3d 839, 840 [2012]; Meyers v Big SixTowers, Inc., 85 AD3d at 877; Sfakianos v Big Six Towers, Inc., 46 AD3d 665 [2007]). "'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' " (Cotter v Brookhaven Mem. Hosp.Med. Ctr., Inc., 97 AD3d 524, 524 [2012], quoting Marchese v Skenderi, 51AD3d 642, 642 [2008]; seeSolazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]; Weller v Paul, 91 AD3d945 [2012]).
The Supreme Court properly concluded that the defendant, in support of its motionfor summary judgment, established its prima facie entitlement to judgment as a matter oflaw under the storm in progress rule (see Smilowitz v GCA Serv. Group, Inc., 101 AD3d 1101,1102 [2012]). In opposition, the plaintiff failed to raise a triable issue of fact. Theplaintiff's remaining contention is without merit.
Accordingly, the Supreme Court properly granted the defendant's motion forsummary judgment dismissing the complaint, and denied, as academic, the plaintiff'scross motion to compel disclosure. Rivera, J.P., Dickerson, Leventhal and Hall, JJ.,concur.