JOSEPH v. DANICE STORES OF NOSTRAND AVENUE INC

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

Yvonne JOSEPH, Respondent, v. DANICE STORES OF NOSTRAND AVENUE, INC., et al., Appellants.

Decided: January 28, 2002

ANITA R. FLORIO, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, THOMAS A. ADAMS and A. GAIL PRUDENTI, JJ. Chesney & Murphy, LLP (Lysaght & Russo, P.C., Rockville Centre, N.Y. [Michelle S. Russo] of counsel), for appellants. Weitz & Luxenberg, P.C. (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Gary Klein and Brian J. Isaac] of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Harkavy, J.), dated September 4, 2001, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

 There is no duty to remove snow and ice while a storm is in progress. A party in possession or control of real property may be held liable for the failure to remove accumulated snow and ice only after a reasonable time subsequent to the ending of the storm (see, Grau v. Taxter Park Assocs., 283 A.D.2d 551, 724 N.Y.S.2d 497; Tillman v. J. DeBenedictis & Sons Bldg. Corp., 237 A.D.2d 593, 594, 655 N.Y.S.2d 1022). Snow or ice removal undertaken during a storm may be actionable if performed negligently, i.e. the removal either creates a hazardous condition or exacerbates the naturally hazardous condition created by the storm (see, Grau v. Taxter Park Assocs., supra; Marrone v. Verona, 237 A.D.2d 805, 654 N.Y.S.2d 481). The record is clear that it was still snowing at the time of the plaintiff's accident, and is devoid of any evidence indicating that a hazardous condition was either created or exacerbated by any acts of the defendants. Thus, the defendants were entitled to summary judgment.

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