SOW v. FEDCAP REHABILITATIVE SERVICES INC (2018)

Order, Supreme Court, New York County (Debra A. James, J.), entered February 3, 2017, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established prima facie that it was entitled to summary dismissal of the complaint by submitting certified weather records, an affidavit by a meteorologist, and plaintiff's own testimony showing that a winter storm was in progress at the time that plaintiff slipped and fell on sidewalk ice in front of its building (see Levene v. N. 2 West 67th St., Inc., 126 A.D.3d 541, 6 N.Y.S.3d 232 [1st Dept. 2015] ).

In opposition, plaintiff failed to raise a triable issue, merely speculating that she slipped on ice that had formed after previous snowfalls had melted and refrozen.  Contrary to plaintiff's contention, in asserting the storm-in-progress defense, defendant was not required to submit records showing the last time it removed snow and ice from its sidewalks;  that is evidence required to refute constructive notice of a hazardous condition (see e.g. Gautier v. 941 Intervale Realty LLC, 108 A.D.3d 481, 970 N.Y.S.2d 191 [1st Dept. 2013] ).