POHL v. STERNBERG

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

Dietrich W. POHL, respondent, v. Miriam STERNBERG, appellant.

Decided: March 29, 1999

CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, ANITA R. FLORIO and LEO F. McGINITY, JJ. Kelly, Hodukavich & Goldberg (Carol R. Finocchio, New York, N.Y., of counsel), for appellant. Richard S. Scanlan, White Plains, N.Y., for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Rosato, J.), entered April 28, 1998, which granted the plaintiff's motion pursuant to CPLR 4404 to set aside a jury verdict in favor of the defendant and for a new trial.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the verdict is reinstated.

The plaintiff was injured when he slipped on the defendant's driveway during a snow and ice storm while repairing a service-line water leak.   The plaintiff claims that he slipped on ice from the leak, or on preexisting snow from a previous snowstorm.

 A party in control of real property may be held liable for a hazardous condition created on its premises because of the accumulation of snow or ice only if he or she had a reasonably sufficient time from the cessation of the precipitation to remedy the condition (see, Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, 622 N.Y.S.2d 496, 646 N.E.2d 798;  Fuks v. New York City Tr. Auth., 243 A.D.2d 678, 663 N.Y.S.2d 639;  Grillo v. New York City Tr. Auth., 214 A.D.2d 648, 625 N.Y.S.2d 293).   A defendant cannot be held liable for an injury caused by a storm which was in progress at the time of the injury.

 Based upon the evidence adduced at trial, it would be pure speculation for the jury to conclude that ice from the leak or preexisting snow caused the plaintiff's fall (see, Urena v. New York City Tr. Auth., 248 A.D.2d 377, 669 N.Y.S.2d 662;  Gonzalez v. City of New York, 168 A.D.2d 541, 563 N.Y.S.2d 93;  Drake v. Prudential Ins. Co., 153 A.D.2d 924, 545 N.Y.S.2d 731).   Therefore, since “it is well settled that a verdict in favor of the defendants should not be set aside unless the evidence preponderates so heavily in the plaintiff's favor that the verdict could not have been reached on any fair interpretation of the evidence” (Keegan v. Prout, 215 A.D.2d 629, 630, 628 N.Y.S.2d 124), it was error for the Supreme Court to set aside the verdict in this case (see, Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184).

MEMORANDUM BY THE COURT.

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