AUTIERI v. LONGI (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated August 16, 2017.  The order, insofar as appealed from, granted the defendants' motion for summary judgment dismissing the amended complaint.

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

On February 28, 2015, the plaintiff allegedly was injured when he slipped and fell on snow and ice on a landing of an exterior stairway at premises owned by the defendants.  The plaintiff commenced this action against the defendants to recover damages for personal injuries, alleging negligent maintenance of the subject stairway.  After joinder of issue, the defendants moved for summary judgment dismissing the amended complaint, arguing that there was a storm in progress at the time of the accident and that they did not have a reasonable time to clear any weather-related hazard on the exterior stairway prior to the accident.  The Supreme Court, inter alia, granted the defendants' motion, and the plaintiff appeals.  We affirm.

Under the storm in progress rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm (see Dumela–Felix v. FGP W. St., LLC, 135 A.D.3d 809, 810, 22 N.Y.S.3d 896;  McCurdy v. KYMA Holdings, LLC, 109 A.D.3d 799, 971 N.Y.S.2d 137;  Smith v. Christ's First Presbyt. Church of Hempstead, 93 A.D.3d 839, 840, 941 N.Y.S.2d 211).  On a motion for summary judgment, the question of whether a reasonable time has elapsed may be decided as a matter of law by the court, based upon the circumstances of the case (see Valentine v. City of New York, 57 N.Y.2d 932, 933–934, 457 N.Y.S.2d 240, 443 N.E.2d 488).

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not have a reasonable opportunity to remedy the snow and ice condition that was created by the storm prior to the plaintiff's fall (see Sherman v. New York State Thruway Auth., 27 N.Y.3d 1019, 1020–1021, 32 N.Y.S.3d 568, 52 N.E.3d 231;  Baolin Liu v. Westchester Prop. Mgt. Group, Inc., 145 A.D.3d 942, 44 N.Y.S.3d 493;  Lanos v. Cronheim, 77 A.D.3d 631, 909 N.Y.S.2d 101;  Valentine v. City of New York, 86 A.D.2d 381, 383, 449 N.Y.S.2d 991, affd 57 N.Y.2d 932, 457 N.Y.S.2d 240, 443 N.E.2d 488).

The plaintiff, in opposition, failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).  Given the plaintiff's deposition testimony regarding the weather conditions, his claim that the snow and ice condition was caused by a defective awning was speculative and, therefore, insufficient to raise a triable issue of fact (see Fisher v. Kasten, 124 A.D.3d 714, 715, 2 N.Y.S.3d 189;  Morreale v. Esposito, 109 A.D.3d 800, 801, 971 N.Y.S.2d 209;  Coyne v. Talleyrand Partners, L.P., 22 A.D.3d 627, 629, 802 N.Y.S.2d 513;  Picerno v. New York City Tr. Auth., 4 A.D.3d 349, 350, 771 N.Y.S.2d 549).

Accordingly, we agree with the Supreme Court's determination to grant the defendants' motion for summary judgment dismissing the amended complaint.

MASTRO, J.P., DILLON, LASALLE and CONNOLLY, JJ., concur.