Court Rejects “Storm-In Progress” Argument in Reversing Summary Judgment for Defendant in Ice Slip/Fall Case

In Ndiaye v. NEP W. 119th St. LP, a slip-and-fall personal injury case, the Appellate Division, First Department reversed the trial court’s order granting defendant’s motion for summary judgment.

Plaintiff sued to recover damages for injuries she allegedly suffered when she slipped and fell on ice on the front steps of defendant’s building. Defendant claimed that it was not liable for failing to remedy the dangerous condition, because there was a storm in progress when plaintiff fell. The First Department concluded that issues of fact precluded the applicability of the storm in progress rule.

Here’s the relevant rule of law:

Although a temporary lull or break in the storm at the time of the accident would not necessarily establish a reasonable opportunity to clear away the hazard[,] …. if the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and [common sense] would dictate that the [storm in progress] rule not be applied.

The court held that “triable issues of fact exist as to whether plaintiff’s accident occurred while the storm was still in progress or whether there was a significant lull in the storm, and whether the three hours that elapsed between the last freezing rain and plaintiff’s accident afforded defendant a reasonable opportunity to clear the steps.”

It also found “triable issues of fact as to whether the icy condition that caused plaintiff’s fall existed prior to the storm, and whether defendants lacked notice of the preexisting condition”, reasoning:

The affidavit of defendant’s expert states that at the start of the day on which the accident occurred “approximately 17 inches of snow and ice cover was present on untreated, undisturbed and exposed outdoor surfaces in the vicinity of the subject area.” While the expert states that frozen precipitation fell intermittently during the day of the accident, he did not state that the alleged icy condition on the steps resulted from that precipitation and not from remnants of ice that may have remained on the steps from the prior snowfalls.

Finally, “plaintiff and her son testified that the steps had been icy for some days before the accident”, and “[d]efendant submitted no evidence as to when the steps had last been inspected or cleaned of snow and ice or as to the condition of the steps on the day of the accident or the days immediately preceding it.” Defendant’s “superintendent’s testimony about its general cleaning procedures alone is insufficient to establish that defendant lacked notice of the alleged condition before the accident.”

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