POWELL v. MLG HILLSIDE ASSOCIATES (2002)

Order, Supreme Court, Bronx County (Joseph Giamboi, J.), entered January 9, 2001, which denied defendants' motion for summary judgment, unanimously affirmed, without costs.

Plaintiff sued her landlord and custodial services agency after falling in the snow in front of her apartment building on March 7, 1999, and injuring her ankle.   Defendants moved for summary judgment on the ground that they were under no immediate obligation to clear away the accumulated snow and ice, since it was still snowing from an overnight storm at the time of the accident.

 The “storm in progress” defense (Grau v. Taxter Park Assocs., 283 A.D.2d 551, 724 N.Y.S.2d 497, lv. denied 96 N.Y.2d 721, 733 N.Y.S.2d 373, 759 N.E.2d 372) is based on the principle that there is no liability for injuries related to falling on accumulated snow and ice until after the storm has ceased, in order to allow workers a reasonable period of time to clean the walkways (Newsome v. Cservak, 130 A.D.2d 637, 515 N.Y.S.2d 564).   The rule is designed to relieve the worker(s) of any obligation to shovel snow while continuing precipitation or high winds are simply re-covering the walkways as fast as they are cleaned, thus rendering the effort fruitless.   Where the evidence in the record is clear that the accident occurred while the storm was still in progress, defendants may avail themselves of the rule as a matter of law (Kay v. Flying Goose, 203 A.D.2d 332, 610 N.Y.S.2d 70;  Rothrock v. Cottom, 115 A.D.2d 242, 495 N.Y.S.2d 857, lv. denied 68 N.Y.2d 601, 505 N.Y.S.2d 1025, 496 N.E.2d 238).   Indeed, evidence of a storm in progress presents a prima facie case for dismissal (Mangieri v. Prime Hospitality Corp., 251 A.D.2d 632, 676 N.Y.S.2d 207).   Such evidence is especially persuasive when based upon the analysis of a licensed meteorologist (see, Tillman v. DeBenedictis & Sons Bldg. Corp., 237 A.D.2d 593, 655 N.Y.S.2d 1022;  Jensen v. Roohan, 233 A.D.2d 587, 649 N.Y.S.2d 100).

 In Zima v. North Colonie Cent. School Dist., 225 A.D.2d 993, 639 N.Y.S.2d 558, an icy rain was still falling at the time of the accident.   Likewise, in Micheler v. Gush, 256 A.D.2d 1051, 1052, 684 N.Y.S.2d 297, the plaintiff's fall on a patch of ice occurred during “a drizzling rain coupled with falling temperatures.”   Even a temporary lull or break in the storm at the time of the accident would not necessarily establish a reasonable opportunity to clear away the hazard (Krutz v. Betz Funeral Home, 236 A.D.2d 704, 653 N.Y.S.2d 212, lv. denied 90 N.Y.2d 803, 661 N.Y.S.2d 179, 683 N.E.2d 1053;  Lopez v. Picotte Cos., 223 A.D.2d 823, 824, 635 N.Y.S.2d 818).

Of course, if the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and common sense would dictate that the rule not be applied.   The case at bar offers just such a marked contrast to the cases following the oft-cited rule.   Here, according to plaintiff's certified meteorologist, there was nothing more than trace amounts of precipitation during the two hour and 20 minute period of sub-freezing temperatures prior to the accident.   As much as two inches of snow had fallen overnight, but climatological charts in the record reveal that by 6 a.m., precipitation had tailed off to less than one-tenth of an inch (the equivalent of less than 0.01″ of rain) per hour.  (The accident occurred at 9:15.)   The custodian was summoned to the scene as early as 7:10 a.m., but according to his testimony, he did not arrive until “around 8:00, ten to-maybe 9:00 something, 9:40.”   If he arrived on scene at 8:00, appreciable precipitation had already ceased for two hours.   And if he arrived as late as 9:40, that would itself raise questions about possible negligence.

 Once there is a period of inactivity after cessation of the storm, it becomes a question of fact as to whether the delay in commencing the cleanup was reasonable.   In some instances a period of as much as 30 hours could be viewed as insufficient to establish negligence (see, Valentine v. City of New York, 86 A.D.2d 381, 449 N.Y.S.2d 991, affd. 57 N.Y.2d 932, 457 N.Y.S.2d 240, 443 N.E.2d 488).   On the other hand, a “reasonable period after cessation of the storm” does not mean “until the snow has melted in spring.”

In applying this rule in derogation of liability, we should be less concerned with what was happening at the very moment of the accident.   More relevant is what was happening during the period immediately preceding the accident.   If only trace amounts fell during the 2-3 hours prior to plaintiff's accident and defendants' custodian was present, then it is reasonable to ask whether the custodian should have been shoveling the accumulated snow.   This record calls for determination by a trier of facts, not a rote application of a rule of law.