THE LAW OF SNOW REMOVAL

Porter v. MASON AVE. HOLDING CORP., 2022 NY Slip Op 51195 - NY: Supreme Court, Richmond 2022:

"Under common law, a property owner has a duty to maintain their property in a reasonably safe condition. See Buffalino v. XSport Fitness, 2022 NY Slip Op. 00998 (2d Dept. 2022); see also Mowla v. Baozhu Wu, 195 AD3d 706 (2d Dept. 2021). A property owner will be held liable for a slip and fall accident involving snow and ice on its property when they created the dangerous condition which caused the accident or had actual or constructive notice of its existence. See Anderson v. Landmark at Eastview, Inc., 129 AD3d 750 (2d Dept. 2015). However, under the storm-in-progress rule, a property owner, tenant in possession, or snow removal contractor will not be held responsible for accidents caused by snow or ice that accumulates during a storm until an adequate period of time has passed following the cessation of the storm to allow an opportunity to ameliorate the hazards caused by the storm. See Henenlotter v. Union Free Sch. Dist. No. 23, 2022 NY Slip Op 06116 (2d Dept. 2022). If said landowner elects to begin the snow removal process during the continuing storm it must do so with reasonable care, or it could be held liable for creating a hazard or exacerbating the hazardous condition. See Petrocelli v. Marrelli Dev. Corp., 31 A.D 3d 623 (2d Dept. 2006). The mere failure of a property owner to remove all of the snow and ice, without more, does not establish that the risk of harm was increased. See Aronov v. St. Vincent's House. Dev. Fund. Co., Inc. 145 AD3d 648 (2d Dept. 2016). The question of whether a reasonable time has passed may be decided by the court as a matter of law, based upon the circumstances of the case. See Acocal v. City of Yonkers, 179 AD3d 630 (2d Dept. 2020).

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After considering the Defendants respective motions the Court finds that they have met their initial burden of establishing a prima facie entitlement to summary judgment. The Expert Affidavit of Mr. Roberts indicates that the wintery mix of precipitation began at 12:45 p.m. (before the incident) and continued until 8:00 or 8:40 p.m. (after the incident). Thus, the storm was "in progress" at 6:00 or 6:30 p.m. when the Plaintiff slipped and fell. As the storm was continuing at the time of the incident the Defendants had no duty to being cleaning operations. See Fitzsimons v. North Shore Univ. Hosp., 205 AD3d 684 (2d Dept. 2022). The fact that the precipitation was not continuous snow is irrelevant as a "wintery mix" is sufficient to satisfy the storm-in-progress doctrine. See Sherman v. New York State Thruway Auth., 27 NY3d 1019 (2016); see also Cohen v. A.R. Fuel Inc., 290 AD2d 640 (3rd Dept. 2002). A property owner is not liable for slip and fall injuries caused by "accumulated snow, rain, ice, sleet, or hail." See Solazzo v. New York City Tr. Auth., 21 AD3d 735 (1st Dept. 2005), affd, 6 NY3d 734 (2005).

As the Defendants have met their burden of establishing an entitlement to summary judgment on the storm-in-progress doctrine, the burden shifts to the Plaintiff to raise a triable issue of fact as to whether there was a storm in progress or whether defendant created or exacerbated the naturally occurring hazardous condition by negligent snow removal efforts. See Lewis v. 311 Realty, LLC, 201 AD3d 591 (1st Dept. 2022); see also DeStefano v. City of New York, 41 AD3d 528 (2d Dept. 2007). Here Plaintiff argues that the storm had ceased by the time of the incident and thus that the storm in progress rule is inapplicable. However, according to the meteorological report provided by Defendants the storm did not cease until hours after the alleged incident. While Plaintiff may have fell during a "lull" in the storm, a lull in a continuing storm does not impose a duty to remove the accumulation of ice and snow before the storm ceases in its entirety. See Johnson v. Pawling Cent. Sch. Dist., 196 AD3d 686 (2d Dept. 2021); see also Fenner v. 1011 Rte. 109 Corp., 122 AD3d 669 (2d Dept. 2014). Plaintiff has offered no evidence to refute the meteorological report which indicates that the storm was ongoing at the time of the incident. While counsel makes certain observations regarding alleged "inconsistencies" in the supporting meteorological data, he has not offered his own expert report to contradict Mr. Robert's expert analysis of that data. Interpretation of meteorological data is beyond the ken of an ordinary person and should be explained by an expert. See Wadsworth Condos LLC v. Dollinger Gonski & Grossman, 114 AD3d 487 (1st Dept. 2014).

Plaintiff's contention that an issue of fact exists as to whether Defendant MDP's snow and ice removal created or exacerbated a dangerous condition is directly refuted by his own deposition testimony that he saw no one shoveling or plowing at the time of the incident and that the snow in the area in which he fell was undisturbed. See Giron v. New York City Hous. Auth., 187 AD3d 603 (1st Dept. 2020). The deposition testimony of Mason Ave.'s Superintendent, Mr. Coyoy, that MDP arrived to clean the snow in the large parking lot at approximately 5:00 or 5:30 p.m., standing alone, is insufficient to establish that they cleaned the specific area where the Plaintiff fell by 6:30, especially considering the Plaintiff's testimony to the contrary. Moreover, even assuming that they did clean the area where the Plaintiff fell, there is simply no evidence, other than mere speculation, that the Defendants' did anything to make naturally occurring condition worse. Speculation and surmise are insufficient to defeat a motion for summary judgment. See Skouras v. New York City Tr. Auth., 48 AD3d 547 (2d Dept. 2008); see also Myrow v. City of Poughkeepsie, 3 AD3d 480 (2d Dept. 2004); Ross v. Lewis, 181 AD3d 423 (1st Dept. 2020).

The storm in progress rule provides a sufficient ground to grant both Defendant's motions. However, Defendant MDP also argues that they owed no legal duty to Plaintiff, a claim only briefly discussed in Plaintiff's opposition. MDP contracted with Mason Ave. to perform snow removal services. A limited contractual undertaking to provide snow removal generally does not render the snow removal contractor liable in tort for the personal injuries of third parties. See Canciani v. Stop & Shop Supermarket Co., LLC, 203 AD3d 1011 (2d Dept. 2022). There are three exceptions to this rule: (1) where the contracting party, in failing to exercise due care, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the performance of the contracting party's duties or (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely. See Espinal v. Melville Snow Contrs., 98 NY2d 136 (2002). Exceptions two and three clearly do not apply, especially considering Plaintiff's allegations that Mason Avenue's agents historically participated in snow removal. Therefore, the only exception that could apply would be if MDP's attempts at snow removal launched the instrument of harm, or in other words, exacerbated the naturally occurring hazardous condition. See Cohen v. City of New York, 209 AD3d 830 (2d Dept. 2022). As discussed above, Plaintiff fails to offer any evidence that MDP cleaned the specific area where the accident occurred. Even assuming they did, Plaintiff fails to allege that MDP undertook any actions that made the naturally occurring hazard worse. See Santos v. Deanco Servs., Inc., 142 AD3d 137 (2d Dept. 2016). Speculation and conjecture are insufficient to defeat a motion for summary judgment. See Crosthwaite v. Acadia Realty Trust, 62 AD3d 838 (2d Dept. 2009)."