DEJESUS v. The City of New York, Defendant. (2021)

Order, Supreme Court, Bronx County (Ruben Franco, J.), entered on or about August 19, 2019, which granted defendant Belle Apartments Housing Development Funding Corp.’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The motion court properly granted defendant's motion for summary judgment based on the storm in progress defense (see Sherman v. New York State Thruway Auth., 27 N.Y.3d 1019, 32 N.Y.S.3d 568, 52 N.E.3d 231 [2016]; 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]; see also Administrative Code of the City of New York § 16–123[a]). Defendant established that there was an ongoing storm at the time plaintiff allegedly slipped and fell on an icy condition by submitting plaintiff's testimony acknowledging that it was snowing at the time (see Mimikos v. City of New York, 161 A.D.3d 674, 78 N.Y.S.3d 56 [1st Dept. 2018]), as well as the weather records and an expert affidavit from a meteorologist (see Lowenstern v. Sherman Sq. Realty Corp., 165 A.D.3d 432, 432, 84 N.Y.S.3d 151 [1st Dept. 2018], lv denied 33 N.Y.3d 906, 2019 WL 2375920 [2019]). The meteorological evidence established that in the hours prior to the accident freezing rain and sleet was falling and at the time of the accident, there was a mix of light snow and sleet, all of which resulted in new ice forming on the sidewalk covered by about 11/212 inches of snow.

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's argument that he slipped on old ice is unsupported by any evidence. Merely stating that the ice appeared to be about one-half or three-quarters inches thick is insufficient evidence to raise a question of fact as to whether the ice that caused plaintiff to slip and fall was from a prior storm (see Small v. Coney Is. Site 4A–1 Houses, Inc., 28 A.D.3d 741, 742, 814 N.Y.S.2d 240 [2d Dept. 2006], lv dismissed 7 N.Y.3d 887, 826 N.Y.S.2d 179, 859 N.E.2d 919 [2006]). The record shows that on the day before the accident there was no precipitation and the temperature was above freezing. There was also no evidence that any prior storm could have caused the icy condition on the sidewalk.

Plaintiff's argument that an issue of fact exists as to whether defendant created or exacerbated the dangerous condition is unpreserved and, in any event, unavailing (see Giron v. New York City Hous. Auth., 187 A.D.3d 603, 603, 131 N.Y.S.3d 119 [1st Dept. 2020]). The record is devoid of any evidence that defendant made any efforts during the storm to remove any snow or ice (see Santiago v. New York City Hous. Auth., 150 A.D.3d 545, 546, 55 N.Y.S.3d 189 [1st Dept. 2017]).