PONCE v. [And a Third–Party Action] (2021)

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered December 23, 2019, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The court properly granted defendants' respective summary judgment motions based on the storm-in-progress defense (Pippo v. City of New York, 43 A.D.3d 303, 304, 842 N.Y.S.2d 367 [1st Dept. 2007];  Powell v. MLG Hillside Assoc., L.P., 290 A.D.2d 345, 345, 737 N.Y.S.2d 27 [1st Dept. 2002]).  Their expert meteorologist opined that the icy condition on the staircase where plaintiff fell was the result of snowfall that day, which stopped approximately 35 to 40 minutes prior to the accident.  A reasonable amount of time had not elapsed between the end of the snowfall and the accident to charge defendants with notice of the icy condition and a duty to remedy the condition (see Santana v. New York City Hous. Auth., 128 A.D.3d 564, 564–565, 10 N.Y.S.3d 47 [1st Dept. 2015];  Clement v. New York City Tr. Auth., 122 A.D.3d 448, 449, 997 N.Y.S.2d 18 [1st Dept. 2014];  Weinberger v. 52 Duane Assoc., LLC, 102 A.D.3d 618, 619, 959 N.Y.S.2d 154 [1st Dept. 2013]).  Further, plaintiff testified that she had not seen ice on the steps at any time before her accident.

In opposition, plaintiff failed to raise an issue of fact.  The conclusion of her expert that the melting and refreezing of accumulated snow from prior snowfall caused plaintiff's fall was speculative (see Rand v. Cornell Univ., 91 A.D.3d 542, 543, 937 N.Y.S.2d 49 [1st Dept. 2012]).