COLON v. SITE WASHINGTON HEIGHTS (2022)

Order, Supreme Court, New York County (Richard G. Latin, J.), entered April 9, 2021, which, to the extent appealed from as limited by the briefs, denied the motion of defendant/third-party plaintiff Site A–Washington Heights and third-party plaintiffs TP4 Housing Development Fund Company, Inc. and Manhattan North Management Co., Inc. (collectively, Site A) for summary judgment dismissing the complaint and for summary judgment on their third-party claims for contractual indemnification against third-party defendant AIDS Service Center of Lower Manhattan, Inc. doing business as AIDS Service Center (collectively, ASCNY), and granted plaintiff's cross motion for leave to amend the complaint, unanimously modified, on the law, to grant Site A's motion for summary judgment dismissing the complaint and otherwise affirmed, without costs.  The Clerk is directed to enter judgment accordingly.

The court providently exercised its discretion in granting plaintiff's motion for leave to amend the complaint to correct the date of the accident.  The amendment did not result in any prejudice or surprise to Site A and was not palpably insufficient or patently devoid of merit (see Delta Dallas Alpha Corp. v. South St. Seaport L.P., 127 A.D.3d 419, 420, 4 N.Y.S.3d 510 [1st Dept. 2015]).

However, the court should have granted Site A's motion for summary judgment.  Site A made a prima facie showing of entitlement to summary judgment based on the storm-in-progress doctrine, because the meteorological data, its expert meteorological affidavit, and plaintiff's deposition testimony annexed to its moving papers establish that there was a storm in progress when the accident occurred (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 [1st Dept. 2019];  Mitchell v. Davidson, 164 A.D.3d 1160, 83 N.Y.S.3d 453 [1st Dept. 2018];  Powell v. MLG Hillside Assoc., 290 A.D.2d 345, 345, 737 N.Y.S.2d 27 [1st Dept. 2002]).  Plaintiff testified at his deposition that “it was snowing real heavy” when he arrived at the property on the morning of the accident at about 8:35 a.m., that it was snowing “a little bit” when he left the property later on that afternoon at around 12:40 p.m., and that it was still snowing when he slipped and fell on the driveway as he was returning to the property at about 1:45 p.m. because there was ice underneath the snow.  Although the burden shifted to plaintiff to establish that Site A created the alleged condition or made it more hazardous by attempting to remove the precipitation from the driveway about five hours before he fell, plaintiff failed to meet that burden as he submitted no expert affidavit explaining how Site A, by not salting or sanding the area before the accident, could have created or exacerbated the naturally occurring ice condition (see Sevilla v. Calhoun Sch., Inc., 127 A.D.3d 446, 446–447, 4 N.Y.S.3d 520 [1st Dept. 2015];  cf.  Garcia v. New York City Tr. Auth., 40 A.D.3d 399, 399–400, 835 N.Y.S.2d 575 [1st Dept. 2007]).

As to Site A's motion for summary judgment on its third-party contractual indemnification claims against ASCNY, we find that Site A's failure to submit the October 3, 2019 order does not require dismissal of the appeal because this Court may take judicial notice of that order even though the order is outside the record on appeal (see Samuels v. Montefiore Med. Ctr., 49 A.D.3d 268, 852 N.Y.S.2d 121 [1st Dept. 2008]).  Nonetheless, based on this unappealed order, Site A is legally responsible for maintaining the driveway where plaintiff's accident occurred as it was not part of the demised premises for which ASCNY was contractually obligated to maintain under the lease.  Thus, Site A is not entitled to summary judgment on its third-party claim for contractual indemnification against ASCNY.