KANTOR v. LEISURE GLEN HOMEOWNERS ASSOCIATION INC

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

Bernard KANTOR, et al., respondents, v. LEISURE GLEN HOMEOWNERS ASSOCIATION, INC., appellant.

Decided: May 23, 2012

WILLIAM F. MASTRO, A.P.J., ANITA R. FLORIO, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ. Vincent D. McNamara, East Norwich, N.Y. (Anthony Marino of counsel), for appellant. The De Santis Law Firm, PLLC, Carle Place, N.Y. (Marc G. De Santis of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated May 18, 2011, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 “Under the ‘storm in progress rule,’ a landowner ‘generally cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter’ ” (Weller v. Paul, 91 A.D.3d 945, 947, 938 N.Y.S.2d 152, quoting Mazzella v. City of New York, 72 AD3d 755, 756, 899 N.Y.S.2d 291;  see Marchese v. Skenderi, 51 A.D.3d 642, 856 N.Y.S.2d 680).   However, once a landowner elects to engage in snow removal activities, it is required to act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm (see Chaudhry v. East Buffet & Rest., 24 A.D.3d 493, 494, 808 N.Y.S.2d 239;  Friedman v. Stauber, 18 A.D.3d 606, 606–607, 795 N.Y.S.2d 612;  Grau v. Taxter Park Assoc., 283 A.D.2d 551, 551–552, 724 N.Y.S.2d 497).

 Contrary to the defendant's contention, it failed to demonstrate its prima facie entitlement to judgment as a matter of law.   The defendant failed to establish that the storm in progress rule applied herein, since the climatological data from a nearby town and the injured plaintiff's deposition testimony, both of which were submitted by the defendant in support of the motion, conflicted as to whether precipitation was falling at or near the time of the accident (see Lester v. Ackerman, 82 A.D.3d 847, 918 N.Y.S.2d 376;  see also Calix v. New York City Tr. Auth., 14 A.D.3d 583, 584, 789 N.Y.S.2d 219).   Furthermore, the defendant failed to adequately demonstrate that the snow removal efforts it undertook neither created nor exacerbated the allegedly hazardous condition which caused the injured plaintiff to fall (see Salvanti v. Sunset Indus. Park Assoc., 27 A.D.3d 546, 813 N.Y.S.2d 110;  Chaudhry v. East Buffet & Rest., 24 A.D.3d at 494, 808 N.Y.S.2d 239).   Since the defendant failed to sustain its prima facie burden, we need not consider the adequacy of the plaintiffs' submissions in opposition to the motion (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;   Lester v. Ackerman, 82 A.D.3d at 847–848, 918 N.Y.S.2d 376).

Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.

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