| Talamas v Metropolitan Transp. Auth. |
| 2014 NY Slip Op 06196 [120 AD3d 1333] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Salim Talamas, Appellant, v MetropolitanTransportation Authority et al., Respondents. |
Frekhtman & Associates, Brooklyn, N.Y. (Arkady Frekhtman and Stephen J.Smith of counsel), for appellant.
Krez & Flores, LLP, New York, N.Y. (Alexandra Vandoros of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Strauss, J.), entered January 31, 2013,which granted the defendants' motion for summary judgment dismissing thecomplaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly sustained personal injuries when he slipped and fell on blackice on an elevated train platform that was exposed to the elements. The plaintiffcommenced this action against the defendants. The defendants moved for summaryjudgment dismissing the complaint, contending that they could not be held liable for theplaintiff's injuries since a storm was in progress at the time of the accident, and theirefforts to keep the station platform free from snow and ice during an ongoing storm didnot create or exacerbate the natural hazard presented by the storm. The Supreme Courtgranted the motion.
A defendant moving for summary judgment in an action predicated upon thepresence of snow or ice has the burden of establishing, prima facie, that it neither createdthe snow and ice condition that allegedly caused the plaintiff to fall nor had actual orconstructive notice of that condition (see Huan Nu Lu v New York City Tr. Auth., 113 AD3d818 [2014]; McBryant vPisa Holding Corp., 110 AD3d 1034 [2013]). "Under the 'storm in progress'rule, a property owner will not be held responsible for accidents caused by snow or icethat accumulates on its premises during a storm 'until an adequate period of time haspassed following the cessation of the storm to allow the owner an opportunity toameliorate the hazards caused by the storm' " (Popovits v New York City Hous.Auth., 115 AD3d 657, 658 [2014], quoting Cotter v Brookhaven Mem. Hosp. Med. Ctr., Inc., 97 AD3d524, 524 [2012]; seeSolazzo v New York City Tr. Auth., 6 NY3d 734 [2005]; Wei Wen Xie v Ye JiangYong, 111 AD3d 617, 618 [2013]; Marchese v Skenderi, 51 AD3d 642 [2008]). "However,once a property owner elects to engage in snow removal activities, the owner must actwith reasonable care so as to avoid creating a hazardous condition or exacerbating anatural hazard created by the storm" (Wei Wen Xie v Ye Jiang Yong, 111 AD3dat 618; see Cotter v BrookhavenMem. Hosp. Med. Ctr., Inc., 97 AD3d 524 [2012]; Kantor v Leisure GlenHomeowners Assn., Inc., 95 AD3d 1177 [2012]).
Here, the evidence submitted by the defendants in support of their motion forsummary judgment, including certified climatological data and transcripts of thedeposition testimony of the parties, demonstrated, prima facie, that a storm was inprogress at the time of the accident (see Meyers v Big Six Towers, Inc., 85 AD3d 877 [2011];Skouras v New York City Tr.Auth., 48 AD3d 547 [2008]; DeStefano v City of New York, 41 AD3d 528 [2007]).Furthermore, the defendants established, prima facie, that their efforts to remove snowand ice from the platform did not create a hazardous condition or exacerbate the naturalhazard created by the storm (see Wei Wen Xie v Ye Jiang Yong, 111 AD3d at617; McCurdy v KYMAHoldings, LLC, 109 AD3d 799 [2013]; Kaplan v DePetro, 51 AD3d 730 [2008]). In opposition, theplaintiff failed to raise a triable issue of fact. The plaintiff's contention that he slippedand fell on old ice that was the product of a prior storm is speculative (see Smith v Christ's First Presbyt.Church of Hempstead, 93 AD3d 839 [2012]; DeVito v Harrison HouseAssoc., 41 AD3d 420 [2007]; Small v Coney Is. Site 4A-1 Houses, Inc., 28 AD3d 741[2006]).
On appeal, the plaintiff contends that the transcripts of the hearing conductedpursuant to Public Authorities Law § 1276 (4) and the transcript of herdeposition testimony, as well as the transcript of the deposition of the defendants'witness, are not in admissible form, and that, accordingly, the Supreme Court should nothave considered them in connection with the defendants' motion for summary judgment.This contention, improperly raised for the first time on appeal, is not properly before thisCourt (see Perez v City of NewYork, 104 AD3d 661 [2013]; Marinkovic v IPC Intl. of Ill., 95 AD3d 839 [2012]).
Accordingly, the Supreme Court properly granted the defendants' motion forsummary judgment dismissing the complaint. Mastro, J.P., Dillon, Miller and Maltese,JJ., concur.