MAUREEN MURPHY PLAINTIFF APPELLANT v. CITY MINI STORAGE LLC DEFENDANT RESPONDENT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages for injuries that she allegedly sustained in a slip and fall on a sidewalk owned by defendant. Following discovery, defendant moved for summary judgment dismissing the complaint pursuant to the storm in progress doctrine. Supreme Court granted the motion, and plaintiff now appeals. We affirm.

“It is well settled that ‘[a] landowner is not responsible for a failure to remove snow and ice until a reasonable time has elapsed after cessation of [a] storm’ ” (Marrero v Oak-Michigan Hous. Dev. Fund Co., Inc., 193 AD3d 1381, 1382 [4th Dept 2021]). “A defendant seeking to avail itself of the storm in progress doctrine meets its prima facie burden by establishing as a matter of law that there was a storm in progress at the time of the accident” (Govenettio v Dolgencorp of N.Y., Inc., 175 AD3d 1805, 1806 [4th Dept 2019]; see Alvarado v Wegmans Food Mkts., Inc., 134 AD3d 1440, 1441 [4th Dept 2015]; Glover v Botsford, 109 AD3d 1182, 1183 [4th Dept 2013]). Although “evidence that it was not precipitating or only lightly precipitating at the time of an accident does not render the storm in progress doctrine inapplicable” (Marrero, 193 AD3d at 1382), the doctrine “does not apply when the accumulation of snow is ‘negligible’ ” (Govenettio, 175 AD3d at 1806; see Patricola v General Motors Corp., 170 AD3d 1506, 1507 [4th Dept 2019]).

Contrary to plaintiff's contention, defendant met its initial burden of establishing as a matter of law “that a storm was in progress at the time of the accident and, thus, that it had no duty to remove the snow [or] ice until a reasonable time ha[d] elapsed after cessation of the storm” (Tambini v State of New York, 230 AD3d 1555, 1555 [4th Dept 2024], lv denied 42 NY3d 913 [2025] [internal quotation marks omitted]; see Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]; Witherspoon v Tops Mkts., LLC, 128 AD3d 1541, 1541-1542 [4th Dept 2015]). Defendant submitted, inter alia, a surveillance video depicting plaintiff walking along defendant's sidewalk immediately prior to the accident. The video shows that it was lightly snowing at that time, a point conceded by the dissent, and that plaintiff left the only visible footprints in the snow accumulated on the sidewalk. Contrary to the dissent's suggestion, we again note that “evidence that it was only snowing lightly at the time of the accident does not render the storm in progress doctrine inapplicable” (Alvarado, 134 AD3d at 1441; see Marrero, 193 AD3d at 1382). Further, both parties agreed in their motion papers that it was snowing overnight and, on appeal, plaintiff does not contend that the snowstorm abated or that the icy condition on which she claims to have slipped preexisted the storm.

In opposition, plaintiff failed to raise a triable issue of fact whether there was a storm in progress when the accident occurred (see Witherspoon, 128 AD3d at 1542; Mann v Wegmans Food Mkts., Inc., 115 AD3d 1249, 1250 [4th Dept 2014]) or whether, “[e]ven if there [had been] a lull or break in the storm around the time of plaintiff's accident, ․ defendant had a reasonable time after the cessation of the storm to correct hazardous snow or ice-related conditions” (Mann, 115 AD3d at 1250 [internal quotation marks omitted]).

All concur except Ogden and Nowak, JJ., who dissent and vote to reverse in accordance with the following memorandum: We disagree with our colleagues that defendant established, on this record, that there was a storm in progress at the time of the accident. We conclude that defendant failed to meet its prima facie burden on its motion for summary judgment dismissing the complaint based on the storm in progress doctrine, and we would therefore reverse the order, deny the motion, and reinstate the complaint (see Govenettio v Dolgencorp of N.Y., Inc., 175 AD3d 1805, 1806 [4th Dept 2019]). On that basis, we respectfully dissent.

To meet its burden, defendant was required to demonstrate that plaintiff's injuries were caused by a snowy or icy condition “ ‘occurring during an ongoing storm or for a reasonable time thereafter’ ” (Sax v Women & Children's Hosp. of Buffalo, 191 AD3d 1352, 1353 [4th Dept 2021], quoting Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]). We agree with the majority that the surveillance video submitted by defendant shows that, at the time of plaintiff's accident, i.e., at approximately 8:00 a.m. on the day in question, light snow was falling. But the mere fact that light snow was falling does not establish that there was an ongoing storm in progress. Indeed, for a “weather event to trigger the application of the storm in progress doctrine, the proof must ‘establish the existence of an ongoing hazardous weather condition’ that amounts to more than trace accumulations” (Powers v State of New York, 247 AD3d 1442, 1446 [3d Dept 2026]), and here the video shows no more than that there was a dusting or trace accumulation of snow on the sidewalk where plaintiff fell (see Crockett v Home Depot U.S.A., Inc., 237 AD3d 1604, 1607 [4th Dept 2025]; Ayers v Pioneer Cent. Sch. Dist., 187 AD3d 1625, 1625 [4th Dept 2020]; Govenettio, 175 AD3d at 1806).

While defendant also submitted deposition testimony from plaintiff, who testified that “[i]t had snowed overnight,” and deposition testimony from one of defendant's owners, who testified that an employee came in at 4:30 a.m. that day to plow “because of the snow storm,” neither deponent testified as to the time or duration of the snowfall or as to the amount of any accumulation of snow or ice, nor did defendant submit testimony or a statement from the employee who came in to plow.

Based on the foregoing, we conclude that defendant failed to establish as a matter of law that there was either an ongoing storm, or a storm occurring prior to plaintiff's accident with respect to which there was not a reasonable amount of time to correct the resulting hazardous conditions (see Gould v 93 NYRPT, LLC, 191 AD3d 1452, 1453 [4th Dept 2021]). Because defendant failed to meet its initial burden, the burden never shifted to plaintiff to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court