In Guzman v. Broadway 922 Enters., LLC, decided July 2, 2015, the Appellate Division, First Department affirmed the denial of defendant’s motion for summary judgment on plaintiff’s snow/ice slip-and-fall case.
The court considered, and rejected, defendant’s defense based on the so-called “storm in progress” rule. In addition, it provides an example of one way a plaintiff can overcome summary judgment – and have their case heard by a jury – in such cases.
From the decision:
Defendant argues that it had no duty to remedy the alleged icy condition that caused plaintiff to slip and fall in front of its deli because there was a storm in progress at the time of the accident (see Administrative Code of NY § 16-123). However, the record demonstrates that the storm-in-progress doctrine has no application here. Plaintiff testified that the ice on which she slipped was covered by a thin layer of recently fallen, clean snow, that the ice, which she felt with her hand after she fell, was dark, dirty, and very thick, and that there was built-up dirty snow in the area, as a result of “a really bad job at cleaning.” Plaintiff’s expert opined that the ice formed either because of “the improper clean-up of past storms” or from the melting of the snow piled up in the area and its refreezing, beginning after 2:00 a.m. on the night before plaintiff’s accident, when the temperature fell to below freezing. …
[P]laintiff’s description of the ice as “dark” and “dirty,” standing alone, is sufficient to raise an issue of fact whether the ice had been there long enough to be discovered and remedied by defendant. Moreover, plaintiff’s testimony that she had seen four to five inches of dirty snow in the area the evening before her accident raises issues of fact whether the ice was caused by either defendant’s improper cleaning after past storms or from the melting and refreezing of snow in the early morning hours preceding the accident and whether defendant’s earlier cleaning of the area caused or exacerbated the hazardous condition. These issues are not eliminated by defendant’s testimony about its normal snow-clearing procedures, since defendant submitted no evidence as to when the sidewalk was last inspected or cleaned before plaintiff’s accident. (Emphasis added.)