CAMPANELLA v. ST JOHN UNIVERSITY (2019)

DECISION & ORDER

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

On January 10, 2014, the plaintiff allegedly slipped and fell on a patch of ice on what was alternately described as a roadway or a pathway on the defendant's premises in Queens.  The plaintiff commenced this action against the defendant to recover damages for personal injuries, alleging that the defendant was negligent in, among other things, maintaining its premises.  The defendant moved for summary judgment dismissing the complaint on the ground that the storm in progress rule applied.  The Supreme Court denied the motion, and the defendant appeals.

In support of its motion, the defendant submitted evidence, including certified climatological data and the sworn report of a meteorologist, which demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint on the ground that the storm in progress rule applied (see Isabel v. New York City Hous. Auth., 171 A.D.3d 714, 95 N.Y.S.3d 834;  Ryan v. Beacon Hill Estates Coop., Inc., 170 A.D.3d 1215, 96 N.Y.S.3d 630;  Hyun Kyung Oh v. Sky View Towers Holding, LLC, 167 A.D.3d 725, 725, 89 N.Y.S.3d 703;  Pankratov v. 2935 OP, LLC, 160 A.D.3d 757, 758, 75 N.Y.S.3d 208).

Contrary to the plaintiff's contention, his opposition papers failed to raise a triable issue of fact as to whether the accident was caused by ice that existed prior to the storm, as opposed to precipitation from the storm in progress, and whether the defendant had actual or constructive notice of the alleged preexisting condition (see Ryan v. Beacon Hill Estates Coop., Inc., 170 A.D.3d at 1215, 96 N.Y.S.3d 630;  Pankratov v. 2935 OP, LLC, 160 A.D.3d at 758, 75 N.Y.S.3d 208;  Smith v. Christ's First Presbyt. Church of Hempstead, 93 A.D.3d 839, 840, 941 N.Y.S.2d 211).  In particular, the opinions contained in an affidavit of the plaintiff's meteorologist as to when and how the alleged ice patch was formed were based on speculation and conjecture (see Pankratov v. 2935 OP, LLC, 160 A.D.3d at 759, 75 N.Y.S.3d 208).

Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.

DILLON, J.P., COHEN, CONNOLLY and BRATHWAITE NELSON, JJ., concur.