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Michael G. PIPERO, Jr., Plaintiff-Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant.

Decided: January 21, 2010

GONZALEZ, P.J., TOM, SWEENY, CATTERSON, ABDUS-SALAAM, JJ. Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for appellant. Birbrower & Beldock, P.C., New City (Jeffrey B. Saunders of counsel), for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered January 16, 2009, which, in an action for personal injuries allegedly sustained as a result of a slip and fall on snow and ice, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant made a prima facie showing that plaintiff fell during a storm in progress by submitting certified weather records showing that snow began the day before plaintiff's accident and, while the intensity decreased, continued through the end of the day of plaintiff's fall (see Pippo v. City of New York, 43 AD3d 303, 304 [2007]; Powell v. MLG Hillside Assoc., 290 A.D.2d 345 [2002] ).

In opposition, plaintiff raised a triable issue of fact as to whether a storm was in progress at the time of the accident based on his deposition testimony that it had not snowed on the day of his accident and that the snow had existed since the previous day (see Mosley v. General Chauncey M. Hooper Towers Hous. Dev. Fund Co., Inc ., 48 AD3d 379, 380 [2008] ). Plaintiff also raised a triable issue of fact as to whether the weather reports clearly indicate that the accident occurred while the storm was still in progress or whether there was a significant lull in the storm (see Powell, 290 A.D.2d at 346; compare Ioele v. Wal-Mart Stores, 290 A.D.2d 614, 616 [2002] ).

Furthermore, even if a storm was in progress at the time of the incident, plaintiff's testimony and defendant's own records raise issues of fact as to whether defendant gratuitously and negligently performed snow and ice removal operations and as to whether its failure to place sand or salt on the stairs created or exacerbated a dangerous condition (see Sanchez v. City of New York, 48 AD3d 275 [2008]; Prenderville v. International Serv. Sys., Inc., 10 AD3d 334, 337-338 [2004] ).

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