VELASQUEZ v. NEW YORK CITY TRANSIT AUTHORITY (2025)

Order, Supreme Court, New York County (Richard Tsai, J.), entered July 26, 2024, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Supreme Court properly denied defendant's motion for summary judgment because defendant did not establish prima facie that there was an ongoing storm at the time plaintiff slipped and fell.  Defendant submitted both plaintiff's testimony that it was raining at the time of the accident and certified climatological reports showing that it had not rained in the 20 hours before the accident.  Thus, defendant's submissions raised an issue of fact as to whether the storm-in-progress doctrine applies (see Abramo v. City of Mount Vernon, 103 A.D.3d 760, 761, 959 N.Y.S.2d 725 [2d Dept. 2013];  Howard v. J.A.J. Realty Enters., 283 A.D.2d 854, 855–856, 726 N.Y.S.2d 159 [3d Dept. 2001];  see also Mosley v. General Chauncey M. Hooper Towers Hous. Dev. Fund Co., Inc., 48 A.D.3d 379, 380, 851 N.Y.S.2d 563 [1st Dept. 2008]).  Although plaintiff did not point out that the meteorological reports showed no precipitation, the court did not err by reviewing the records presented to it and determining that they did not support defendant's characterization of them (see Dancy v. New York City Hous. Auth., 23 A.D.3d 512, 513, 806 N.Y.S.2d 630 [2d Dept. 2005]).  Given these conflicts, defendant's motion for summary judgment was properly denied, regardless of the sufficiency of plaintiff's opposition papers (see Bodoff v. Cedarhurst Park Corp., 213 A.D.3d 802, 803, 184 N.Y.S.3d 770 [2d Dept. 2023]).

Furthermore, defendant did not establish that it lacked constructive notice of the alleged worn step because it failed to address that allegation in its moving papers (see Jones v. 550 Realty Hgts., LLC, 89 A.D.3d 609, 609, 932 N.Y.S.2d 778 [1st Dept. 2011]).

We have considered defendant's remaining contentions and find them unavailing.