Belevich v. Renaissance I, LLC. ( 2021 )

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ROBERT BELEVICH v. RENAISSANCE I, LLC
(AC 43085)
Moll, Alexander and DiPentima, Js.
Syllabus
The plaintiffs, B and Y Co., sought to recover damages from the defendants,
certain companies possessing, controlling, managing and maintaining
certain premises, for personal injuries B sustained in connection with
an alleged slip and fall as a result of untreated ice on the premises. The
trial court granted the defendants’ motion for summary judgment on
the basis of the ongoing storm doctrine, and the plaintiffs appealed to
this court. Held that the trial court properly granted the defendants’
motion for summary judgment because the defendants met their initial
burden to demonstrate that there was no genuine issue of material fact
that there was an ongoing storm at the time of B’s fall, and the plaintiffs
thereafter failed to sustain their burden: as the movants for summary
judgment, the defendants met their initial burden by submitting admissi-
ble evidence showing it was undisputed that there was an ongoing storm
at the time of B’s alleged fall, and the burden subsequently shifted to
the plaintiffs to demonstrate the existence of a genuine issue of fact as
to whether B’s fall was caused by a slippery condition that existed
prior to the ongoing storm and whether the defendants had actual or
constructive notice of the allegedly preexisting condition, and the plain-
tiffs failed to do so, as their evidentiary submission contained no evi-
dence to suggest that the allegedly icy condition at the location where
B fell had existed prior to the ongoing storm or that the defendants had
actual or constructive notice of any preexisting icy conditions; moreover,
this court expressly adopted the burden-shifting approach used by the
state of New York in addressing this issue of first impression to deter-
mine precisely what a movant for summary judgment must demonstrate
to satisfy its initial burden when relying on the ongoing storm doctrine
and any burden shifting that may follow.
Argued October 7, 2020—officially released August 31, 2021
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the defendant’s alleged negligence,
and for other relief, brought to the Superior Court in
the judicial district of New Haven, where the court,
Markle, J., granted a motion to intervene as a party
plaintiff filed by Yale University; thereafter, the court
granted the named plaintiff’s motions to cite in B & W
Paving & Landscaping, LLC, and Winstanley Property
Management, LLC, as party defendants; thereafter, the
court, Abrams, J., granted the defendants’ motion for
summary judgment and rendered judgment thereon,
from which the plaintiffs appealed to this court.
Affirmed.
Russell J. Bonin, with whom was Phyllis M. Pari,
for the appellants (plaintiffs).
David M. Houf, for the appellees (defendants).
Opinion
MOLL, J. The plaintiff, Robert Belevich, and the
intervening plaintiff, Yale University (Yale) (collec-
tively, plaintiffs), appeal from the summary judgment
rendered by the trial court in favor of the defendants,
Renaissance I, LLC (Renaissance), B & W Paving &
Landscaping, LLC (B & W), and Winstanley Property
Management, LLC (Winstanley) (collectively, defen-
dants), on Belevich’s one count complaint sounding in
premises liability arising out of his alleged slip and fall.1
On appeal, the plaintiffs claim that the court improperly
granted summary judgment in favor of the defendants
on the basis of the ongoing storm doctrine because
(1) the defendants did not establish the absence of a
genuine issue of material fact as to the applicability
of the doctrine, and (2) the court improperly, albeit
implicitly, shifted the burden to the plaintiffs to negate
the applicability of the doctrine, contending that the
defendants should have been required to demonstrate
that the ongoing storm produced the black ice on which
Belevich allegedly fell.2 We affirm the summary judg-
ment of the trial court.
Belevich alleged, inter alia, the following facts in the
operative complaint. On January 31, 2017, Belevich was
caused to slip and fall as a result of untreated ice on
premises possessed, controlled, managed, and main-
tained by the defendants. Such occurrence was alleged
to have resulted from the negligence of the defendants
in one or more of seven ways specified in the complaint.
As a result of such fall, Belevich suffered various physi-
cal injuries and has incurred, and may continue to incur,
medical expenses, pain and suffering, loss of enjoyment
of life’s activities, and a loss of wages and earning capac-
ity.
On November 1, 2017, Belevich commenced the pres-
ent action against Renaissance. On November 29, 2017,
pursuant to General Statutes § 31-293, Yale filed a
motion to intervene as a party plaintiff, alleging that,
on or about January 31, 2017, Belevich was an employee
of Yale, and claiming that any damages recovered by
him shall be paid and apportioned such that Yale would
be reimbursed for all workers’ compensation benefits
it paid to or on behalf of Belevich pursuant to the
Workers’ Compensation Act, General Statutes § 31-275
et seq. The court granted Yale’s motion to intervene on
January 17, 2018. Thereafter, B & W and Winstanley
were cited in as party defendants.
On July 11, 2018, Belevich filed his second amended
complaint, which became the operative complaint,
sounding in one count of premises liability.3 In the oper-
ative complaint, Belevich alleged that on January 31,
2017, he was caused to slip and fall as a result of
untreated ice stemming from the negligence of the
defendants. The defendants answered the complaint
and asserted a special defense alleging that Belevich’s
alleged injuries and damages were caused, in whole or
in part, by his own negligence.
On October 31, 2018, the defendants filed a motion for
summary judgment directed to the operative complaint,
accompanied by a supporting memorandum of law and
appended exhibits. The defendants argued therein that
they were entitled to judgment as a matter of law on
the grounds that they owed no duty to Belevich (1) on
the basis of the ongoing storm doctrine and (2) because
they lacked actual or constructive notice of the alleged
defect. As evidentiary support for their motion, the
defendants submitted transcript excerpts from the Sep-
tember 20, 2018 deposition of Belevich.
Those excerpts reflected Belevich’s testimony to the
following facts. On January 31, 2017, Belevich was an
HVAC controls mechanic employed by Yale. It was
snowing when he arrived at work. Belevich did not
know when it started to snow that morning. As far as
he knew, from the time he arrived at work until his fall
at 2:30 p.m., it continued to snow. He was sure that
while he was working, he looked out windows and
saw that it was continuing to snow. At 2:30 p.m., while
walking toward the garage where he had parked his
car, he slipped and fell in a parking lot in front of 344
Winchester Avenue in New Haven. Belevich testified
unequivocally that it was snowing at the time of his
fall. In addition, there were a couple of inches of snow
on the ground, and at least one snowplow was in the
process of plowing the parking lot. Belevich testified
that he walked from the part of the parking lot that
was covered in snow to the area that had been cleared;
he ‘‘walk[ed] a little bit faster . . . picked up speed
and . . . fell.’’ He thought he fell on black ice. He had
no idea how thick the ice was, and he did not know
how long it had been there.
On March 6, 2019, Belevich filed a memorandum of
law in opposition to the defendants’ motion for sum-
mary judgment with appended exhibits, including addi-
tional transcript excerpts from his deposition, as well
as his March 6, 2019 affidavit.4 In his affidavit, Belevich
stated, among other things, that, on January 31, 2017,
during the 11 a.m. hour while he was waiting for a Yale
van to transport him from a job assignment, he did not
see any snow falling and that he did not remember
seeing snow falling during a fifteen minute ride when
his lunch break was over at 12:30 p.m. He also stated
that, on January 31, 2017, at approximately 2:30 p.m.,
around the time of his afternoon break, he noticed that
it was snowing.
On May 17, 2019, the trial court granted the defen-
dants’ motion for summary judgment on the basis of
the ongoing storm doctrine.5 The court reasoned:
‘‘While the only evidence before the court regarding the
ongoing storm issue is [Belevich’s] deposition testi-
mony indicating that it was snowing when he fell, that
testimony is uncontroverted and, as a result, sufficient
to allow the defendant[s] to meet [their] factual burden
on the ongoing storm issue. Clearly, had [Belevich] pre-
sented the court with certified climatological data, testi-
mony or any other evidence to the contrary, it would
give rise to a genuine issue of material fact, but no such
evidence is before the court. As a result, the defen-
dant[s’] motion for summary judgment is hereby
granted.’’6 This appeal followed. Additional facts and
procedural history will be set forth as necessary.
Before turning to the plaintiffs’ claims on appeal, we
set forth the relevant standard of review. ‘‘Practice
Book § 17-49 provides that summary judgment shall be
rendered forthwith if the pleadings, affidavits and any
other proof submitted show that there is no genuine
issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. A party
moving for summary judgment is held to a strict stan-
dard. . . . To satisfy his burden the movant must make
a showing that it is quite clear what the truth is, and
that excludes any real doubt as to the existence of any
genuine issue of material fact. . . . As the burden of
proof is on the movant, the evidence must be viewed
in the light most favorable to the opponent. . . . When
documents submitted in support of a motion for sum-
mary judgment fail to establish that there is no genuine
issue of material fact, the nonmoving party has no obli-
gation to submit documents establishing the existence
of such an issue. . . . Once the moving party has met
its burden, however, the opposing party must present
evidence that demonstrates the existence of some dis-
puted factual issue. . . . It is not enough, however, for
the opposing party merely to assert the existence of
such a disputed issue. Mere assertions of fact . . . are
insufficient to establish the existence of a material fact
and, therefore, cannot refute evidence properly pre-
sented to the court under Practice Book § [17-45]. . . .
Our review of the trial court’s decision to grant [a]
motion for summary judgment is plenary.’’ (Emphasis
omitted; internal quotation marks omitted.) Capasso v.
Christmann, 163 Conn. App. 248, 257, 135 A.3d 733(2016).
On appeal, the plaintiffs claim that the court improp-
erly rendered summary judgment in favor of the defen-
dants on the basis of the ongoing storm doctrine
because (1) the defendants did not establish the
absence of a genuine issue of material fact as to the
applicability of the doctrine, and (2) the court improp-
erly shifted the burden to the plaintiffs to negate the
applicability of the doctrine because the defendants
provided no evidence that an ongoing storm produced
the black ice on which Belevich allegedly fell. We dis-
agree and address these interrelated claims together.
This appeal requires us to consider the application
of the ongoing storm doctrine in the context of summary
judgment and its attendant burden-shifting. In Kraus
v. Newton, 211 Conn. 191, 197–98, 558 A.2d 240 (1989),
our Supreme Court adopted the ongoing storm doctrine
relating to the duty to protect invitees upon one’s prop-
erty when a snowstorm is in progress at the time of
the plaintiff’s alleged injury. The court defined the doc-
trine as follows: ‘‘[I]n the absence of unusual circum-
stances, a property owner, in fulfilling the duty owed
to invitees upon his property to exercise reasonable
diligence in removing dangerous accumulations of
snow and ice, may await the end of a storm and a
reasonable time thereafter before removing ice and
snow from outside walks and steps.7 To require a land-
lord or other inviter to keep walks and steps clear of
dangerous accumulations of ice, sleet or snow or to
spread sand or ashes while a storm continues is inexpe-
dient and impractical. Our decision, however, does not
foreclose submission to the jury, on a proper eviden-
tiary foundation, of the factual determinations of
whether a storm has ended or whether a plaintiff’s
injury has resulted from new ice or old ice when the
effects of separate storms begin to converge.’’ (Foot-
note added; footnote omitted.) Id.; see also Umsteadt
v. G. R. Realty, 123 Conn. App. 73, 82–83, 1 A.3d 243(2010) (addressing accuracy of jury charge in light of
Kraus); Cooks v. O’Brien Properties, Inc., 48 Conn.
App. 339, 342–47, 710 A.2d 788 (1998) (same).
In Leon v. DeJesus, 123 Conn. App. 574, 575, 2 A.3d
956 (2010), a negligence action, this court affirmed the
summary judgment rendered by the trial court in favor
of the defendant on the ground that, pursuant to the
ongoing storm doctrine, the defendant owed no legal
duty to the plaintiff. This court reasoned that, pursuant
to our Supreme Court’s decision in Kraus, because it
was undisputed that there was an ongoing storm at the
time of the plaintiff’s alleged fall, the defendant was
entitled to judgment as a matter of law. Id., 578. In
Leon, we did not expressly opine on (1) precisely what
a movant for summary judgment must demonstrate to
satisfy its initial burden when relying on the doctrine
and (2) any burden-shifting that may follow. This appeal
provides such an opportunity.
We initially observe that the appellate authority from
other jurisdictions that have adopted the ongoing storm
doctrine in which courts have addressed the doctrine
in the context of summary judgment is relatively scant.
Nevertheless, the doctrine has been the subject of fre-
quent application in New York,8 and we turn to that
body of law for guidance. See Squeo v. Norwalk Hospi-
tal Assn., 316 Conn. 558, 573, 113 A.3d 932 (2015)
(‘‘[w]hen contemplating issues of first impression with
regard to Connecticut’s common law, we often have
sought to benefit from the collective wisdom and expe-
rience of our sister states’’).
We find the New York Appellate Division’s decision
in Meyers v. Big Six Towers, Inc., 85 App. Div. 3d 877,
925 N.Y.S.2d 607 (2011), to be particularly helpful. In
Meyers, the court stated the following with respect to
burden-shifting in the context of the ongoing storm
doctrine, often referred to as the ‘‘storm in progress’’
doctrine under New York law: ‘‘As the proponent of
the motion for summary judgment, the defendant ha[s]
to establish, prima facie, that it neither created the snow
and ice condition nor had actual or constructive notice
of the condition . . . . [T]he defendant [may sustain]
this burden by presenting evidence that there was a
storm in progress when the plaintiff fell . . . . [Upon
the defendant meeting its burden], the burden shift[s]
to the plaintiff to raise a triable issue of fact as to
whether the precipitation from the storm in progress
was not the cause of his accident . . . . To do so, the
plaintiff [is] required to raise a triable issue of fact
as to whether the accident was caused by a slippery
condition at the location where the plaintiff fell that
existed prior to the storm, as opposed to precipitation
from the storm in progress, and that the defendant
had actual or constructive notice of the preexisting
condition . . . .’’ (Citations omitted.) Id., 877–78. We
are persuaded by the foregoing burden-shifting
approach as it has been articulated under New York
law, we note that it is consistent with Leon v. DeJesus,
supra, 123 Conn. App. 574, and we expressly adopt it
as a matter of Connecticut common law.
We now turn to an application of such principles to
the present case. As the movants for summary judg-
ment, the defendants bore the initial burden to demon-
strate that there was no genuine issue of material fact
that there was an ongoing storm when Belevich alleg-
edly fell. See Meyers v. Big Six Towers, Inc., supra,85 App. Div. 3d 877. Here, the defendants submitted
admissible evidence in the form of Belevich’s deposition
testimony. Specifically, during his deposition, Belevich
testified that it was snowing when he fell, and that it
had been snowing all day. More specifically, Belevich
was asked if ‘‘it continue[d] to snow all day until 2:30
[p.m.],’’ to which he answered, ‘‘[y]es.’’ Additionally,
when asked if it was snowing ‘‘on [his] head’’ ‘‘[a]s
[he] walk[ed] toward the garage,’’ Belevich answered,
‘‘[y]es.’’ The evidence submitted in opposition to the
defendants’ motion did not create a triable issue of fact
in this regard. Most notably, Belevich’s affidavit left
the fact of an ongoing storm uncontroverted. Instead,
Belevich reaffirmed that fact by stating that ‘‘[a]t
approximately 2:30 p.m., around the time of my after-
noon break, I noticed that it was snowing.’’ Thus, it
remained undisputed that there was an ongoing storm at
the time of Belevich’s alleged fall.9 Thus, the defendants
satisfied their initial burden to demonstrate that there
was no genuine issue of material fact that there was
an ongoing storm when Belevich allegedly fell. See, e.g.,
id. (defendant sustained burden by presenting evidence
of storm in progress when plaintiff fell); see also Ryan
v. Beacon Hill Estates Cooperative, Inc., 170 App. Div.
3d 1215, 1216, 96 N.Y.S.3d 630 (2019) (defendants sus-
tained burden where it was undisputed that storm was
in progress at time of plaintiff’s accident).
Accordingly, the burden shifted to the plaintiffs to
demonstrate the existence of a genuine issue of fact as
to whether Belevich’s fall was caused by a slippery
condition that existed prior to the ongoing storm and
whether the defendants had actual or constructive
notice of the allegedly preexisting condition. See Mey-
ers v. Big Six Towers, Inc., supra, 85 App. Div. 3d
877–78. The plaintiffs failed to show that there existed
a genuine issue of fact ‘‘as to whether the accident was
caused by a slippery condition at the location where
[Belevich] fell that existed prior to the storm, as
opposed to precipitation from the storm in progress,
and that the defendant[s] had actual or constructive
notice of the preexisting condition . . . .’’ Id., 878.
Belevich’s evidentiary submission, which included addi-
tional deposition excerpts and his affidavit, contained
no evidence to suggest that the allegedly icy condition
at the location where he fell had existed prior to the
ongoing storm or that the defendants had actual or
constructive notice of any preexisting icy conditions.
Indeed, Belevich’s deposition excerpts reflected his tes-
timony that he did not know how long the black ice
had been there and had no idea how thick it was. His
affidavit was silent on these issues. See footnote 9 of
this opinion. Thus, the plaintiffs failed to sustain their
burden. See, e.g., Campanella v. St. John’s University,
176 App. Div. 3d 913, 913, 112 N.Y.S.3d 153 (2019) (The
plaintiff’s ‘‘opposition papers failed to raise a triable
issue of fact as to whether the accident was caused
by ice that existed prior to the storm, as opposed to
precipitation from the storm in progress, and whether
the defendant had actual or constructive notice of the
alleged preexisting condition . . . . In particular, the
opinions contained in an affidavit of the plaintiff’s mete-
orologist as to when and how the alleged ice patch was
formed were based on speculation and conjecture
. . . .’’ (Citations omitted.)), appeal denied, 35 N.Y.3d
914, 153 N.E.2d 447, 130 N.Y.S.3d 2 (2020); Battaglia
v. MDC Concourse Center, LLC, 175 App. Div. 3d 1026,
1028, 108 N.Y.S.3d 607 (2019) (notwithstanding plain-
tiff’s deposition testimony and statement of plaintiff’s
expert, court concluded that ‘‘[t]o say that old ice
caused the subject ice patch opposed to the storm in
progress would require a jury to resort to conjecture
and speculation in order to determine the cause of the
incident’’ (internal quotation marks omitted)), aff’d, 34
N.Y.3d 1164, 144 N.E.3d 367, 121 N.Y.S.3d 757 (2020);
Ryan v. Beacon Hill Estates Cooperative, Inc., supra,170 App. Div. 3d 1216 (‘‘The plaintiff’s opposition papers
failed to raise a triable issue of fact as to whether the
accident was caused by ice that existed prior to the
storm, as opposed to precipitation from the storm in
progress, and whether the defendants had constructive
notice of the alleged preexisting condition . . . . The
opinions contained in the affidavit of the plaintiff’s
meteorological expert as to when and how the ice was
formed were based on speculation and conjecture
. . . .’’ (Citations omitted.)); Powell v. Cedar Manor
Mutual Housing Corp., 45 App. Div. 3d 749, 749–50,
844 N.Y.S.2d 890 (2007) (‘‘In opposition, the plaintiff
failed to raise a triable issue of fact . . . . The plain-
tiff’s contention that she fell on ‘old’ ice from a prior
storm which was hidden under the new snowfall is mere
speculation and insufficient to defeat the defendants’
motion for summary judgment . . . .’’ (Citations omit-
ted.)); DeVito v. Harrison House Associates, 41 App.
Div. 3d 420, 421, 837 N.Y.S.2d 726 (2007) (‘‘Here the
injured plaintiff’s allegations that the ice which alleg-
edly caused her accident had been present for ‘a day
or two,’ or that it was ‘from another time,’ were insuffi-
cient to raise a triable issue of fact as to whether she
fell on ‘old’ ice . . . . The plaintiffs also did not submit
any evidence to substantiate their claim that the
weather conditions prior to the accident date could
have resulted in the creation of icy patches in the area
where the accident occurred, or any proof that the
respondents had notice of such a condition . . . .’’
(Citations omitted.)); Martin v. Wagner, 30 App. Div.
3d 733, 735, 816 N.Y.S.2d 243 (2006) (concluding that
defendants’ motion for summary judgment should have
been granted because plaintiff failed to satisfy his bur-
den, upon proper burden-shifting, as he produced no
proof indicating that ‘‘ ‘snow-ice’ ’’ condition that he
claimed caused his fall was anything other than result
of fresh accumulation).
Notably, under the New York burden-shifting
approach that we expressly adopt today, even ‘‘[e]vi-
dence that there was ice in the general vicinity of the
accident prior to the storm is insufficient to raise a
triable issue of fact as to whether the defendant had
actual or constructive notice of the condition of the
specific area within the parking lot where the plaintiff
fell . . . .’’ Meyers v. Big Six Towers, Inc., supra, 85
App. Div. 3d 878, citing Alers v. La Bonne Vie Organiza-
tion, 54 App. Div. 3d 698, 863 N.Y.S.2d 750 (2008), Powell
v. Cedar Manor Mutual Housing Corp., supra, 45 App.
Div. 3d 749, DeVito v. Harrison House Associates,
supra, 41 App. Div. 3d 420, Robinson v. Trade Link
America, 39 App. Div. 3d 616, 833 N.Y.S.2d 243 (2007),
Small v. Coney Island Site 4A-1 Houses, Inc., 28 App.
Div. 3d 741, 814 N.Y.S.2d 240 (2006), Regan v. Hartsdale
Tenants Corp., 27 App. Div. 3d 716, 813 N.Y.S.2d 153(2006), Dowden v. Long Island Railroad, 305 App. Div.
2d 631, 759 N.Y.S.2d 544 (2003), and Zoutman v. Goshen
Central School District, 300 App. Div. 2d 656, 752
N.Y.S.2d 711 (2002). The plaintiffs’ evidence missed
even this mark by failing to present any evidence of icy
conditions prior to the ongoing storm in the vicinity of
the location of his fall.
The plaintiffs argue that ‘‘the court erred in shifting
[the] burden because the defendants provided zero evi-
dence that the storm which caused snow to fall on
[Belevich] at 2:30 p.m. also produced the black ice on
which [Belevich] fell.’’ They additionally argue that ‘‘it
was not incumbent on [Belevich] to prove that the storm
which caused snow to fall on him at 2:30 p.m. also
produced the black ice on which he fell. The defendants
provided no evidence of freezing rain, temperature, or,
critically, when the black ice was formed. That was
their burden, they did not even attempt to meet it,
and the court, instead of holding them to their burden,
shifted it to the plaintiff[s]. The court erred when it so
shifted the burden.’’ We disagree. As previously stated,
the burden was on the defendants to show that there
was an ongoing storm at the time of Belevich’s alleged
fall. Upon the defendants’ meeting their burden, the
burden then shifted to the plaintiffs to demonstrate
the existence of a genuine issue of fact as to whether
Belevich’s fall was caused by a slippery condition that
existed prior to the ongoing storm and whether the
defendants had actual or constructive notice of the
allegedly preexisting condition. We note that the plain-
tiffs presented even less evidence—e.g., no expert testi-
mony, no weather reports—than what was deemed
insufficient in the New York cases cited previously in
this opinion.
Finally, we note that the plaintiffs have cited no
authority—and we are not aware of any—to support
their suggestion that there exists a ‘‘black ice’’ or icy
condition exception to the ongoing storm doctrine.
Indeed, the conditions at issue in Kraus and Umsteadt,
among others, involved icy conditions.
In sum, the defendants met their initial burden to
demonstrate that there was no genuine issue of material
fact that there was an ongoing storm at the time of
Belevich’s fall. The plaintiffs thereafter failed to sustain
their burden. Therefore, we conclude that the court
properly granted the defendants’ motion for summary
judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the plaintiffs’ joint appeal form indicates that the plaintiffs also
appeal from the trial court’s June 19, 2019 denial of Belevich’s motion to
reargue, they have not provided any analysis in their appellate briefs with
respect to that ruling. Accordingly, we deem any such claim to be abandoned.
See, e.g., Corrarino v. Corrarino, 121 Conn. App. 22, 23 n.1, 993 A.2d
486 (2010).
2
The plaintiffs also claim on appeal that—to the extent that the court’s
rendering of summary judgment was based on the defendants’ second argu-
ment in support of their motion for summary judgment—namely, that the
defendants did not owe a duty to Belevich because they lacked actual
or constructive knowledge of the alleged defect—the defendants did not
establish the absence of a genuine issue of material fact that they did not
have actual or constructive notice of the alleged black ice. Because the trial
court did not reach the defendants’ second argument, however, we need
not address this claim.
3
On July 13, 2018, in light of Belevich’s second amended complaint, Yale
filed a request for leave to file an amended intervening complaint and
appended the proposed amendment, which was deemed to have been filed
by consent, absent objection.
4
Yale filed an objection to the defendants’ motion for summary judgment,
incorporating and adopting Belevich’s opposition thereto.
5
The court set forth its decision in a JDNO notice, which we treat as the
court’s memorandum of decision.
6
Belevich and Yale filed separate motions to reargue. Belevich’s motion
to reargue was denied; Yale’s motion to reargue was marked off after the
plaintiffs filed their appeal.
7
We previously have held that a defendant’s status as a commercial prop-
erty owner does not constitute an unusual circumstance under Kraus. See
Sinert v. Olympia & York Development Co., 38 Conn. App. 844, 848–50, 664
A.2d 791, cert. denied, 235 Conn. 927, 667 A.2d 553 (1995).
8
Cf. Solazzo v. New York City Transit Authority, 6 N.Y.3d 734, 735, 843
N.E.2d 748, 810 N.Y.S.2d 121 (2005) (applying New York law) (‘‘A property
owner will not be held liable in negligence for a plaintiff’s injuries sustained
as the result of an icy condition occurring during an ongoing storm or for
a reasonable time thereafter . . . . Here, it had been snowing, sleeting and
raining on and off all day and the steps down into the subway were exposed
to those weather conditions. Thus, summary judgment was properly granted
in [the] defendants’ favor.’’ (Citation omitted.)); see also, e.g., Sherman v.
New York State Thruway Authority, 27 N.Y.3d 1019, 1020, 52 N.E.3d 231,
32 N.Y.S.3d 568 (2016) (affirming reversal of denial of defendant’s motion
for summary judgment on basis of storm in progress doctrine); Baker v. St.
Christopher’s Inn, Inc. 138 App. Div. 3d 652, 653–54, 29 N.Y.S.3d 439 (2016)
(affirming granting of defendants’ motion for summary judgment on basis
of storm in progress doctrine); Meyers v. Big Six Towers, Inc., 85 App. Div.
3d 877, 877–78, 925 N.Y.S.2d 607 (2011) (reversing denial of defendant’s
motion for summary judgment on basis of storm in progress doctrine);
Sfakionas v. Big Six Towers, Inc., 46 App. Div. 3d 665, 665–66, 846 N.Y.S.2d
584 (2007) (affirming granting of defendant’s motion for summary judgment
on basis of storm in progress doctrine).
9
Because Belevich’s affidavit does not contradict his prior deposition
testimony on this point, we need not address the applicability of the ‘‘sham
affidavit’’ rule, which ‘‘refers to the trial court practice of disregarding an
offsetting affidavit in opposition to a motion for summary judgment that
contradicts the affiant’s prior deposition testimony. . . . Connecticut appel-
late courts have yet to expressly adopt this rule.’’ (Citations omitted; internal
quotation marks omitted.) Kenneson v. Eggert, 176 Conn. App. 296, 310,
170 A.3d 14 (2017).