Emilio Bagnoli, et al., Plaintiffs–Respondents, v. 3GR 228 LLC

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Supreme Court, Appellate Division, First Department.

Emilio Bagnoli, et al., Plaintiffs–Respondents, v. 3GR/228 LLC, et al., Defendants–Appellants.


Decided: February 14, 2017

Tom, J.P., Sweeny, Renwick, Moskowitz, Kapnick, JJ. Mauro Lilling Naparty, LLP, Woodbury (Catherine R. Everett of counsel), for appellants. Trolman, Glaser & Lichtman, P.C., New York (Tina M. Wells of counsel), for respondents.


Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about July 11, 2016, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly denied in this action where plaintiff was injured when he slipped and fell on a patch of ice in front of defendants' building.  Defendants' storm-in-progress defense was unavailing where plaintiff and a nonparty witness testified that the ice patch on which plaintiff fell had a non-clear, whitish-to-gray coloration, with some thickness to it, and the meteorological experts for both sides opined that less than 1/10th of an inch of freezing rain had fallen in the storm that was occurring at the time of plaintiff's fall.  The meteorological experts also stated that the freezing rain would only account for a thin clear glaze on the sidewalk, and the meteorological records further established that the area experienced a six-to-seven inch snowfall several days prior to plaintiff's fall, with the temperatures thereafter remaining at or below freezing up until the time of plaintiff's fall.  Under the circumstances presented, triable issues of fact exist as to whether plaintiff's fall was caused by an ice condition associated with the prior storm, and whether defendants had a reasonable time to remedy it before the accident (see Guzman v. Broadway 922 Enters., LLC, 130 AD3d 431 [1st Dept 2015] ).