Pankratov v. 2935 Op, LLC

160 A.D.3d 757

75 N.Y.S.3d 208

Vladimir PANKRATOV, appellant,

v.2935 OP, LLC, respondent.

2016–11018

Index No. 501129/14

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

Argued—January 4, 2018

April 11, 2018

Law Office of Yuriy Prakhin, P.C., Brooklyn, N.Y. (Michele Ficarra of counsel), for appellant.

Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, N.Y. (Mohammad M. Haque of counsel), for respondent.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Carl J. Landicino, J.), dated October 7, 2016. The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On January 25, 2014, the plaintiff allegedly slipped and fell on an exterior walkway which was part of premises located at 2935 Ocean Parkway in Brooklyn which the defendant allegedly owned. The plaintiff commenced this action against the defendant to recover damages for personal injuries. After joinder of issue, the defendant moved for summary judgment dismissing the complaint on the grounds that the plaintiff was unable to identify the cause of his fall and that the storm in progress rule applied. The Supreme Court granted the defendant's motion on the ground that the plaintiff was unable to identify the cause of his fall. The plaintiff appeals and we affirm, albeit on a ground different from that relied upon by the Supreme Court.

In support of its motion, the defendant submitted excerpts of the plaintiff's deposition transcript which demonstrated, prima facie, that the plaintiff was unable to identify the cause of his fall without resorting to speculation (see Razza v. LP Petroleum Corp., 153 A.D.3d 740, 741, 60 N.Y.S.3d 325 ; Amster v. Kromer, 150 A.D.3d 804, 804, 54 N.Y.S.3d 103 ; Hoovis v. Grand City 99 Cents Store, Inc., 146 A.D.3d 866, 866, 45 N.Y.S.3d 524 ; Hahn v. Go Go Bus Tours, Inc., 144 A.D.3d 748, 749, 40 N.Y.S.3d 549 ; Giordano v. Giordano, 140 A.D.3d 699, 700, 30 N.Y.S.3d 896 ). In opposition, however, the plaintiff raised a triable issue of fact in this regard by submitting a complete copy of his deposition transcript. When the entirety of that transcript is reviewed, it is clear that the plaintiff identified transparent ice as the cause of his fall. Contrary to the defendant's contention, such testimony correlates to the plaintiff's averments regarding the cause of his fall which were set forth in his subsequent affidavit.

However, contrary to the plaintiff's contentions on appeal, the defendant also demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint on the ground that the storm in progress rule applied. A defendant moving for summary judgment in an action predicated upon the presence of snow or ice has the burden of establishing, prima facie, that it neither created the snow or ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition (see Talamas v. Metropolitan Transp. Auth., 120 A.D.3d 1333, 1334, 993 N.Y.S.2d 102 ). "This burden may be established by presenting evidence that there was a storm in progress when the injured plaintiff allegedly slipped and fell" ( Smith v. Christ's First Presbyt. Church of Hempstead, 93 A.D.3d 839, 839–840, 941 N.Y.S.2d 211 ; see Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 925 N.Y.S.2d 607 ; Sfakianos v. Big Six Towers, Inc., 46 A.D.3d 665, 846 N.Y.S.2d 584 ). "Under the so-called ‘storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm" ( Marchese v. Skenderi, 51 A.D.3d 642, 642, 856 N.Y.S.2d 680 ; see Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 810 N.Y.S.2d 121, 843 N.E.2d 748 ; Dumela–Felix v. FGP W. St., LLC, 135 A.D.3d 809, 810, 22 N.Y.S.3d 896 ; McCurdy v. KYMA Holdings, LLC, 109 A.D.3d 799, 799–800, 971 N.Y.S.2d 137 ; Smith v. Christ's First Presbyt. Church of Hempstead, 93 A.D.3d at 840, 941 N.Y.S.2d 211 ; Weller v. Paul, 91 A.D.3d 945, 947, 938 N.Y.S.2d 152 ).

Here, the evidence submitted by the defendant in support of its motion for summary judgment, in particular...