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

Michael WHITT, et al., respondents, v. ST. JOHN'S EPISCOPAL HOSPITAL, appellant.

Decided: February 22, 1999

LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, WILLIAM D. FRIEDMANN and ANITA R. FLORIO, JJ. Wilson, Elser, Moskowitz, Edelman & Dicker, New York, N.Y. (Brian Del Gatto and J. Winston Alcruz of counsel), for appellant. Dennis Marc Reisman, Great Neck, N.Y. (Stephanie A. Litsakis of counsel), for respondents.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (DeMaro, J.), entered February 2, 1998, which denied its motion for summary judgment.

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

The plaintiff Michael Whitt, a milk deliveryman, slipped and fell on snow and ice which had accumulated on a pathway in a senior citizen housing complex owned by the defendant.   He cut his hand on a shard of glass from a broken milk bottle.   The defendant's motion for summary judgment was supported by climatological records which tended to establish that precipitation in the form of snow or ice pellets had begun the previous day and had not completely ceased until between 10 and 11 P.M. in the evening.   The accident occurred at approximately 7:30 A.M. the next morning.   The injured plaintiff testified in his deposition that the storm had ceased only 5 or 6 hours before the accident.

 As a general rule, the owner or proprietor of nonresidential premises may await the end of a snow or ice storm and for a reasonable time thereafter before undertaking protective measures to correct storm-created, hazardous conditions caused by accumulated ice and snow upon its outside walks and steps (see generally, Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, 622 N.Y.S.2d 496, 646 N.E.2d 798;  IA PJI [3d ed.], at 442-443;  86 N.Y.Jur., Premises Liability, § 300).   Here, the record established that the storm ceased late in the evening and that the accident happened in the early morning hours.   This evidence was sufficient to establish a prima facie right to judgment as a matter of law (Preuschoff v. Wank, 16 A.D.2d 690, 227 N.Y.S.2d 522;  cf., Valentine v. City of New York, 86 A.D.2d 381, 449 N.Y.S.2d 991, affd. 57 N.Y.2d 932, 457 N.Y.S.2d 240, 443 N.E.2d 488).

The plaintiffs, in opposing this motion, relied primarily on speculation that the icy condition might have been exacerbated in some way by the maintenance work done by agents of the defendant during the progress of the ice storm.   However, there is “no evidence that the defendant[ ]'s * * * cleaning operation either caused or created the [condition] upon which the plaintiff slipped” (Bonfrisco v. Marlib Corp., 30 A.D.2d 655, 291 N.Y.S.2d 375, affd. 24 N.Y.2d 817, 300 N.Y.S.2d 593, 248 N.E.2d 448;  see also, Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, 622 N.Y.S.2d 496, 646 N.E.2d 798).   The plaintiffs' submissions failed to reveal the existence of a triable issue of fact, and the defendant was therefore entitled to summary judgment.


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