HERNANDEZ v. 102 (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant 102 Holding Corp. appeals from an order of the Supreme Court, Queens County (Chereé A. Buggs, J.), dated October 29, 2024.  The order denied that defendant's motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against the defendant 102 Holding Corp. (hereinafter the defendant), among others, to recover damages for personal injuries that she allegedly sustained when she slipped and fell on snow-covered ice on a sidewalk abutting the defendant's premises.  The defendant moved for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it.  In an order dated October 29, 2024, the Supreme Court denied the motion.  The defendant appeals.

“In general, a real property owner or a party in possession or control of real property will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice [of it]” (Canciani v. Stop & Shop Supermarket Co., LLC, 203 A.D.3d 1011, 1014, 166 N.Y.S.3d 174 [internal quotation marks omitted];  see Cerar v. Jefferson Val. Mall L.P., 225 A.D.3d 738, 739, 207 N.Y.S.3d 623).  “Thus, [i]n a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous condition nor had actual or constructive notice of its existence” (Canciani v. Stop & Shop Supermarket Co., LLC, 203 A.D.3d at 1014, 166 N.Y.S.3d 174 [internal quotation marks omitted]).

However, “[a] landowner will not be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter” (Pennino v. Brooklyn Kings Plaza, LLC, 186 A.D.3d 1701, 1702, 131 N.Y.S.3d 707).  “To be entitled to summary judgment dismissing the complaint, the defendant's prima facie burden may be met by presenting evidence that there was a storm in progress when the plaintiff allegedly slipped and fell” (Cerar v. Jefferson Val. Mall L.P., 225 A.D.3d at 739, 207 N.Y.S.3d 623 [internal quotation marks omitted];  see Venza v. Catholic Charities of the Diocese of Rockville Ctr., 235 A.D.3d 804, 806, 228 N.Y.S.3d 250).

Here, the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross-claims insofar as asserted against it under the storm-in-progress rule.  The evidence submitted by the defendant in support of its motion, which included, among other things, a transcript of the plaintiff's deposition testimony, failed to establish that the ice upon which the plaintiff slipped and fell was the result of an ongoing storm as opposed to the accumulation of ice from prior snowfalls (see Venza v. Catholic Charities of the Diocese of Rockville Ctr., 235 A.D.3d at 806–807, 228 N.Y.S.3d 250;  Cardona v. City of New York, 222 A.D.3d 711, 712, 202 N.Y.S.3d 213;  Stukes v. New York City Hous. Auth., 203 A.D.3d 980, 981, 161 N.Y.S.3d 841;  Taormina–Fucci v. 100–02 Rockaway Blvd. 26, LLC, 201 A.D.3d 766, 767, 156 N.Y.S.3d 917).

Since the defendant failed to meet its initial burden as the movant, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

IANNACCI, J.P., MILLER, WAN and LANDICINO, JJ., concur.