Taormina-Fucci v. 100-02 Rockaway Blvd. 26, LLC

201 A.D.3d 766

156 N.Y.S.3d 917 (Mem)

Cheryl TAORMINA–FUCCI, appellant,

v.100–02 ROCKAWAY BLVD. 26, LLC, respondent.

2019-09827

Index No. 703396/17

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

Submitted—November 5, 2021

January 12, 2022

Scott Baron & Associates, P.C., Howard Beach, NY (Andrea R. Palmer of counsel), for appellant.

Barry McTiernan & Moore, LLC, New York, NY (Laurel A. Wedinger and David H. Schultz of counsel), for respondent.

HECTOR D. LASALLE, P.J., COLLEEN D. DUFFY, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), entered July 18, 2019. The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

In or about March 2017, the plaintiff commenced this action against the defendant to recover damages for personal injuries she alleged she sustained in March 2015 when she slipped and fell on ice in a parking lot owned by the defendant. The plaintiff alleged, among other things, that the defendant was negligent in failing to maintain the parking lot in a reasonably safe condition. Thereafter, the defendant moved for summary judgment dismissing the complaint on the ground that the storm in progress defense barred the plaintiff's claims. In an order entered July 18, 2019, the Supreme Court granted the defendant's motion. The plaintiff appeals.

Contrary to the plaintiff's contention, the defendant demonstrated good cause for its delay in making its motion for summary judgment, and the Supreme Court providently exercised its discretion in entertaining the late motion (see CPLR 3212[a] ; Chou v. A to Z Vending Serv. Corp., 36 A.D.3d 745, 745, 830 N.Y.S.2d 204 ).

However, the Supreme Court should have denied the defendant's motion, as the defendant failed to establish, prima facie, its entitlement to judgment as a matter of law (see Kearse v. 40 Wall St. Holdings Corp., 185 A.D.3d 1015, 1016–1017, 126 N.Y.S.3d 679 ). Although the defendant submitted evidence, which included, among other things, a weather report authored by its expert meteorologist which established, prima facie, that a storm was ongoing at the time of the plaintiff's fall, the defendant also submitted the transcript of the plaintiff's deposition testimony which raised triable issues of fact as to whether...