DeSTEFANO v. CITY OF NEW YORK (2007)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated April 25, 2006, as granted that branch of the defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant City of New York.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly was injured when he slipped and fell on an icy area of the public sidewalk of 27th Avenue in Brooklyn, which abuts a ballpark that is part of Lafayette High School.   Although the notice of claim served upon the defendant City of New York stated that the plaintiff's accident occurred at approximately 8:00 P.M. on February 3, 2000, according to the plaintiff's General Municipal Law § 50-h testimony, the accident occurred between 6:00 P.M. and 7:00 P.M.   The plaintiff testified that he observed a sheet of ice at the location after he fell.

 The City demonstrated its entitlement to judgment as a matter of law by submitting proof, including climatology data records, demonstrating that a storm which started at approximately 6:00 P.M. was in progress during the evening when the plaintiff's fall occurred (see Dowden v. Long Island Rail Road, 305 A.D.2d 631, 759 N.Y.S.2d 544).   As noted by the court in Valentine v. City of New York, 86 A.D.2d 381, 449 N.Y.S.2d 991, affd. 57 N.Y.2d 932, 457 N.Y.S.2d 240, 443 N.E.2d 488, “[r]esponsibility for ice conditions arises, at the most, only after the lapse of a reasonable time for taking protective measures and never while a storm is still in progress” (id. at 384, 449 N.Y.S.2d 991 [citation omitted];  see also Gray v. City of New York, 33 A.D.3d 857, 825 N.Y.S.2d 481, quoting Solazzo v. New York City Transit Authority, 6 N.Y.3d 734, 810 N.Y.S.2d 121, 843 N.E.2d 748).   Furthermore, a lull in the storm does not impose a duty on the owner to remove the accumulation of snow or ice before the storm ceases in its entirety (see Dowden v. Long Island Rail Road, supra;  Camacho v. Garcia, 273 A.D.2d 835, 709 N.Y.S.2d 738).   In opposition, the plaintiff failed to submit proof demonstrating the presence of an issue of fact as to whether there was a snow storm in progress on the evening of February 3, 2000, in the location of his fall.   We reject the argument of the plaintiff's attorney, predicated on the climatological evidence submitted by the defendants, that there were only trace amounts of snow caused by the storm, which could not have caused the plaintiff to fall.   We also reject, as pure speculation, the argument by the plaintiff's attorney that the plaintiff fell on a “pre-existing snow and/or ice condition” on the ground rather than on a fresh accumulation (see Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, 622 N.Y.S.2d 496, 646 N.E.2d 798;  Yen Hsia v. City of New York, 295 A.D.2d 565, 744 N.Y.S.2d 887;  Chapman v. City of New York, 268 A.D.2d 498, 702 N.Y.S.2d 355;  Abaya v. City of New York, 257 A.D.2d 446, 683 N.Y.S.2d 263).

 Moreover, even if the “storm in progress” doctrine were inapplicable, in response to the City's prima facie demonstration that it did not create or have actual or constructive notice of the icy spot on the sidewalk where the plaintiff allegedly fell, the plaintiff's opposing proof failed to demonstrate the existence of any triable issue of fact (see Krichevskaya v. City of New York, 30 A.D.3d 471, 817 N.Y.S.2d 103;  Reagan v. Hartsdale Tenants Corp., 27 A.D.3d 716, 813 N.Y.S.2d 153;  Pizarro v. Grenadier Realty Corp., 5 A.D.3d 652, 774 N.Y.S.2d 733;  Gutierrez v. City of New York, 292 A.D.2d 419, 738 N.Y.S.2d 893;  Wines v. City of New York, 283 A.D.2d 639, 725 N.Y.S.2d 862;  Booth v. City of New York, 272 A.D.2d 357, 707 N.Y.S.2d 488;  Drevis v. City of New York, 257 A.D.2d 595, 684 N.Y.S.2d 271;   Davis v. City of New York, 255 A.D.2d 356, 679 N.Y.S.2d 423).   Accordingly, the Supreme Court properly granted that branch of the defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against the City.

The plaintiff's remaining contentions are without merit.