JACQUELINE LEON v. DOMINIC PASSARELLI DOMINIC PASSARELLI PASSARELLI IRREVOCABLE TRUST (2025)

On January 5, 2022 during an early morning snowstorm, plaintiff Gustavo Leon slipped and fell on the steps leading from his second-floor apartment as he left for work. There was snow and/or ice on the steps. He fell backward, sustaining a head injury that caused him to spend over a month in the hospital followed by subsequent hospitalizations and treatment in a rehabilitation center. As a result, he lost both of his jobs and his home and suffers from the effects of a brain injury, which limits the work he can perform. In the present action, plaintiffs claim that defendants negligently failed to clear the snow from the steps where plaintiff slipped and fell. Defendants have moved for summary judgment pursuant to CPLR 3212, seeking dismissal of all claims. Despite the tragic accident sustained by plaintiff, this Court finds the motion meritorious. Under the storm in progress rule, a property owner's duty to clear the hazards created by a storm begins following the cessation of the storm. When this accident occurred, the snowstorm was ongoing. The Court, therefore, is compelled to dismiss all claims against the defendants.

The following papers were read and considered in connection with defendants' motion for summary judgment pursuant to CPLR 3212 seeking dismissal of all claims and causes of action interposed by plaintiffs:

PAPERS NYSCEF Doc. Nos.

Notice of Motion/Statement of Material Facts/

Attorney Affirmation in Support/Memorandum of Law in Support/

Exhibits A-F 50-59

Affirmation in Opposition/Exhibit 1 67-68

Affirmation in Reply 69

FACTUAL AND PROCEDURAL BACKGROUND

The instant negligence action arises from plaintiff Gustavo Leon's fall on January 5, 2022, when he slipped on the steps leading from the apartment that had a cover of snow and/or ice. The landlord had always cleared snow and ice from the steps during the 18 years plaintiff lived there. In his deposition, plaintiff explained that he was leaving home between 7:30 and 8:15 a.m., that it was snowing when the accident occurred, and that the snow had not been cleared from the steps upon which he fell. Plaintiff sustained a brain injury from the fall that ultimately led to his inability to perform the duties required by his jobs as an automobile mechanic and an office cleaner (see Exhibit C, NYSCEF Doc. No. 55).

Plaintiffs commenced the instant action by the filing of a summons and verified complaint on August 2, 2022 (NYSCEF Doc. No. 1). Defendants filed the instant motion for summary judgment on June 11, 2025. Defendants argue that they cannot be held liable for plaintiff's injuries because the accident occurred during a storm that was in progress.

In opposition, plaintiffs' sole argument is that the affirmation of defendants' attorney filed in support of the within motion is improper and defective in that it does not comply with the requirements of CPLR 2106. Notably, plaintiffs do not address the substance of defendants' motion, namely, by providing evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.

In their reply, defendants allege, among other things, that the subject affirmation does, indeed, comply with the requirements of CPLR 2106 and that plaintiffs have failed to submit evidence creating any material issues of fact.

ANALYSIS

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case and to warrant a court to direct judgment in its favor, as a matter of law. See Civil Practice Law and Rules § 3212 (b); See also Giuffrida v. Citibank Corp., et al, 100 NY2d 72 (2003) citing Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Winegrad v. New York University Medical Center, 64 NY2d 851 (1985).

Once a moving party has made prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); Gonzalez v. 98 Maq Leasing Corp., 95 NY2d 124 (2000), citing Alvarez, supra, and Winegrad v. New York University Med. Center, 64 NY2d 851 (1985). Summary judgment will be granted only if there is no triable issue of fact. Issue finding, rather than issue determination, is the key to summary judgment, and the papers on the motion should be scrutinized in the light most favorable to the party opposing the relief. Judice v. DeAngelo, 272 AD2d 583 (2d Dept 2000).

"A defendant property owner moving for summary judgment in an action predicated upon the presence of snow or ice has the burden of establishing, prima facie, that it neither created the snow or ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition. The defendant's prima facie burden may be satisfied by presenting evidence that there was a storm in progress when the . . . plaintiff allegedly slipped and fell." McCullagh v. City of New York, 201 AD3d 714, 715 (2d Dept 2022) (internal citations omitted). "A property owner will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter." Solazzo v. New York City Transit Auth., 6 NY3d 734, 735 (2005).

Here, it is undisputed that there was a snowstorm in progress when the accident occurred. In his deposition, plaintiff Gustavo Leon acknowledged that it was snowing when the accident occurred (NYSCEF Doc. No. 55). Further, defendants provided an affidavit by Steven Roberts, CCM, a meteorologist who concluded that there was an ongoing frozen precipitation event at the location of the accident from approximately 4:35 a.m. on January 5, 2022 that ended by approximately 1:10 p.m. that day. Mr. Roberts further opined that this was consistent with snow and ice that accumulated between 6:00 a.m. and 9:00 a.m. at the subject location that day as opposed to any pre-existing snow or ice cover (NYSCEF Doc. No. 57). "Such evidence is especially persuasive when based upon the analysis of a licensed meteorologist." Powell v. MLG Hillside Assocs., L.P., 290 AD2d 345 (1st Dept 2002). Accordingly, defendants have made a prima facie showing of their entitlement to summary judgment as a matter of law.

In opposition, plaintiffs failed to raise any material issues of fact as to whether defendants created the condition or had actual or constructive knowledge of same. Instead, plaintiffs focused their entire opposition to the within motion for summary judgment on the purported infirmity of the affirmation of defendants' attorney and maintain that it failed to comply with CPLR 2106. This rule now requires that all affirmants, including attorneys, to provide specific language in their affirmations. This Court agrees that had said affirmation not complied with CPLR 2106, it would have been inadmissible.¹ However, the opposite is the case. Here, as noted in the reply affirmation of defendants' attorney, the subject affirmation does in fact comply with CPLR 2106 in that defendants' attorney used the requisite language of CPLR 2106 on page 5 of his affirmation (NYSCEF Doc. No. 52).

CONCLUSION

Having made a prima facie showing of their entitlement to judgment as a matter of law dismissing the complaint, the burden of going forward shifted to plaintiffs to raise a triable issue of fact as to whether the storm in progress rule applies (see Smith v. Christ's First Presbyterian Church of Hempstead, 93 AD3d 839 [2nd Dept 2012]). Plaintiffs simply failed to address and/or raise any such material issues of fact. Dismissal of the complaint is therefore warranted.

Accordingly, it is hereby

ORDERED that defendants' motion for summary judgment is granted in all respects, and all claims asserted against them in the complaint are hereby dismissed, with prejudice.

This constitutes the decision and order of this court.

Dated: October 22, 2025

White Plains, New York

ENTER:

HON. WALTER RIVERA, J.S.C.

FOOTNOTES

1.   Significantly, plaintiffs further argue that defendants are not permitted to cure deficiencies in their moving papers in their reply papers. In the case of Kallo v. Kane St. Synagogue, 231 AD3d 522 (2nd Dept 2025), the Second Department found that a defective affirmation that was missing the required language of CPLR 2106 may be corrected with the submission of a reply affirmation containing the requisite language.

Walter Rivera, J.