Aminata Sow, Plaintiff–Appellant, v. Fedcap Rehabilitative Services, Inc., Defendant–Respondent.

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Supreme Court, Appellate Division, First Department, New York.

Aminata Sow, Plaintiff–Appellant, v. Fedcap Rehabilitative Services, Inc., Defendant–Respondent.

6402

Decided: April 26, 2018

Mazzarelli, J.P., Kapnick, Kahn, Kern, Singh, JJ. David Gendelman, New York (Gary E. Divis of counsel), for appellant. Eustace, Marquez, Epstein, Prezioso & Yapchanyk, New York (Maureen E. Peknic of counsel), for respondent.

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Order, Supreme Court, New York County (Debra A. James, J.), entered February 3, 2017, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established prima facie that it was entitled to summary dismissal of the complaint by submitting certified weather records, an affidavit by a meteorologist, and plaintiff's own testimony showing that a winter storm was in progress at the time that plaintiff slipped and fell on sidewalk ice in front of its building (see Levene v. N. 2 West 67th St., Inc., 126 AD3d 541 [1st Dept 2015] ).

In opposition, plaintiff failed to raise a triable issue, merely speculating that she slipped on ice that had formed after previous snowfalls had melted and refrozen.  Contrary to plaintiff's contention, in asserting the storm-in-progress defense, defendant was not required to submit records showing the last time it removed snow and ice from its sidewalks;  that is evidence required to refute constructive notice of a hazardous condition (see e.g. Gautier v. 941 Intervale Realty LLC, 108 AD3d 481 [1st Dept 2013] ).

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CLERK