ESCOBAR v. [And a Third–Party Action] (2023)

Order, Supreme Court, New York County (Denise M. Dominquez, J.), entered April 4, 2023, which granted defendant's motion for summary judgment, unanimously affirmed, without costs.

The court properly granted defendant's motion based on the “storm in progress doctrine” (see Clement v. New York City Tr. Auth., 122 A.D.3d 448, 448, 997 N.Y.S.2d 18 [1st Dept. 2014];  see also Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 735, 810 N.Y.S.2d 121, 843 N.E.2d 748 [2005];  Hussein v. New York City Tr. Auth., 266 A.D.2d 146, 146, 699 N.Y.S.2d 27 [1st Dept. 1999]).  Defendant met its prima facie burden by submitting climatological records showing that more than five inches of snow accumulated on the date of the accident, and plaintiff's testimony that it had been snowing throughout the day and that it was “flurrying” only a half hour before her accident (see e.g. Lewis v. 311 Realty, LLC, 201 A.D.3d 591, 591, 158 N.Y.S.3d 559 [1st Dept. 2022]).

Plaintiff fails to raise a triable issue of fact, as her expert's opinion that the wet condition was caused by a leak in the walls is speculative and unsupported by the photographs he submitted with his affidavit (see Deutsch v. City of New York, 69 A.D.3d 523, 893 N.Y.S.2d 771 [1st Dept. 2010]).  In any event, he fails to explain how a leaking condition behind the walls could cause water to pool on the staircase (see e.g. Rivas v. New York City Hous. Auth., 140 A.D.3d 580, 34 N.Y.S.3d 443 [1st Dept. 2016]).  Moreover, her reference to service maintenance records showing leaks in other areas of the station are insufficient to establish constructive notice of the leak that allegedly caused her accident (see Ellisy v. Eklecco, LLC, 56 A.D.3d 517, 868 N.Y.S.2d 82 [2d Dept. 2008]).