Corlette v. SN Auto Repairs, Inc.

211 N.Y.S.3d 501

227 A.D.3d 858

George CORLETTE, respondent,

v.SN AUTO REPAIRS, INC., et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 1, 2024

May 15, 2024

Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, NY (Lauren B. Bristol of counsel), for appellants.

Schwartzapfel Lawyers, P.C. (Michael H. Zhu, Esq., P.C., New York, NY, of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., PAUL WOOTEN, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Mojgan C. Lancman, J.), dated January 5, 2023. The order denied the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is granted.

The plaintiff allegedly was injured on November 15, 2018, at approximately 5:45 p.m., when she slipped and fell on snow on a sidewalk abutting premises owned by the defendant Sarah Vivar and occupied by the defendant SN Auto Repairs, Inc. (hereinafter SN Auto). In February 2020, the plaintiff commenced this action against the defendants to recover damages for personal injuries. Thereafter, the defendants moved for summary judgment dismissing the complaint. In an order dated January 5, 2023, the Supreme Court denied the defendants’ motion. The defendants appeal.

[1, 2] Under the storm-in-progress rule, a property owner or a tenant in possession will not be held responsible for accidents caused by snow or ice that accumulates during a storm until an adequate period of time has passed following the cessation of the storm to allow an opportunity to ameliorate the hazards caused by the storm (see Sherman v. New York State Thruway Auth., 27 N.Y.3d 1019, 1020–1021, 32 N.Y.S.3d 568, 52 N.E.3d 231; Henenlotter v. Union Free Sch. Dist. No, 23, 210 A.D.3d 657, 658, 177 N.Y.S.3d 156). However, once a landowner or a tenant in possession elects to engage in snow removal during a storm in progress, "it is required to act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm" (Balagyozyan v. Federal Realty L.P., 191 A.D.3d 749, 751, 142 N.Y.S.3d 77 [internal quotation marks omitted]; see Morris v. Home Depot USA, 152 A.D.3d 669, 670, 59 N.Y.S.3d 92). "The mere failure of a defendant to remove all of the snow and ice, without more, does not establish that the defendant increased the risk of harm" (Aronov v. St. Vincent’s Hous. Dev. Fund Co., Inc., 145 A.D.3d 648, 649, 43 N.Y.S.3d 99; see Keeney v. Hempstead Turnpike, LLC, 205 A.D.3d 896, 897, 166 N.Y.S.3d 568).

[3] Here, in support of their motion, the defendants submitted, inter alia, transcripts of the deposition testimony of the plaintiff and of the owner of SN Auto, climatological data, and an expert affidavit, which established, prima facie, that snow began to fall in the early afternoon...