Citation Numbers: 85 A.D.3d 877, 925 N.Y.S.2d 607
Filed Date: 6/14/2011
Status: Precedential
Modified Date: 1/12/2022
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (McDonald, J.), dated December 2, 2010, which denied its 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 granted.
The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained on February 12, 2008, when he slipped and fell on snow and ice on a driveway parking lot ramp at the defendant’s premises. The defendant moved for summary judgment dismissing the complaint, arguing that the so-called “storm in progress” doctrine precluded recovery. The Supreme Court denied the defendant’s motion. We reverse.
As the proponent of the motion for summary judgment, the defendant had to establish, prima facie, that it neither created the snow and ice condition nor had actual or constructive notice of the condition (see Persaud v S & K Green Groceries, Inc., 72 AD3d 778, 779 [2010]; Vasta v Home Depot, 25 AD3d 690 [2006]). Here, the defendant sustained this burden by presenting evidence that there was a storm in progress when the plaintiff fell (see Sfakianos v Big Six Towers, Inc., 46 AD3d 665, 665 [2007]; Evans v MTA/New York City Tr. Auth., 41 AD3d 533,534 [2007]; Mangieri v Prime Hospitality Corp., 251 AD2d 632, 633 [1998]).
Accordingly, the burden shifted 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 (see Alers v La