LOOK AT THE WEATHER - IS THE COURT OPEN?

Yesterday, I had 5 hearings scheduled in the Berkshires and was ready to leave when I received a notice that the courts were closed due to snow. I got this notice immediately by checking with court closing websites and signing up for emergency notices.

In Massachusetts, see https://www.mass.gov/info-details/emergency-or-weather-related-court-closings 

In New York, see https://www.nycourts.gov/notice/emergency-alerts.shtml

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).

.......

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)."

A SNOW CASE

Hutchings v. GARRISON LIFESTYLE PIERCE HILL, LLC, 2018 NY Slip Op 57 - NY: Appellate Div., 3rd Dept. 2018:

"On January 4, 2012, plaintiff Carole A. Hutchings was injured when she fell on ice in a parking lot on property managed by defendant Levin Management Properties and/or defendant Levin Properties, L.P. (hereinafter collectively referred to as Levin) and owned by defendants Garrison Lifestyle Pierce Hill, LLC and/or defendant Garrison Investment Group, LP. Levin contracted with defendant Cenova, Inc. to perform snow and ice removal services and, on January 3, 2012, defendant A Great Choice Lawncare and Landscaping, LLC applied salt to the parking lot pursuant to its subcontract with Cenova for snow and ice removal. Hutchings and her spouse, derivatively, commenced this negligence action seeking damages for the injuries she sustained. Following joinder of issue, Cenova moved for summary judgment dismissing the complaint and granting a cross claim that it asserted against Great Choice for indemnification. Great Choice cross-moved for summary judgment dismissing the complaint and Cenova's cross claim. Supreme Court granted Cenova's motion and Great Choice's cross motion and granted summary judgment in Cenova's favor on its indemnification claim against Great Choice. Plaintiff and Great Choice now appeal.

It is well-settled that a party that contracts with a property owner to provide snow and ice removal services cannot be liable to a third party who is injured on the property unless "(1) . . . the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties launche[d] a force or instrument of harm; (2) . . . the plaintiff detrimentally relie[d] on the continued performance of the contracting party's duties; [or] (3) . . . the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002] [internal quotation marks and citation omitted]; see Baker v Buckpitt, 99 AD3d 1097, 1098 [2012]). Supreme Court determined that Cenova and Great Choice (hereinafter collectively referred to as defendants) were entitled to summary judgment in their favor. On this appeal, plaintiffs do not dispute the court's determination with regard to the sufficiency of defendants' submissions; instead, they contend that the court erred because plaintiffs raised questions of fact with regard to the first and third exceptions described in Espinal.

In opposition to defendants' submissions, plaintiffs claimed that Hutchings slipped and fell on a patch of ice that formed when snow and ice melted and refroze in a depression on the surface of the parking lot. In our view, Supreme Court properly determined that the third Espinal exception was not applicable. On this issue, plaintiffs rely on certain provisions in the agreement between Cenova and Levin that granted Cenova independent authority with regard to aspects of its snow and ice removal services, including, specifically, a provision that obligated Cenova to "report to the property without request . . . when icy, sleet or slush conditions exist," and a provision that encouraged "spot applications" of salt and sand when necessary. The agreement also stated that Levin retained authority over Cenova's work, inasmuch as it prioritized its plowing schedule, told Cenova where to pile snow, detailed the ice removal materials and methods that Cenova was to use and required Cenova to seek Levin's approval before it applied salt and sand in certain circumstances. Accordingly, while Cenova retained some independent authority, we cannot conclude that the agreement "displaced entirely" Levin's duty to maintain the property (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 584 [1994]; see Gibson v Dynaserv Indus., Inc., 88 AD3d 1135, 1136 [2011]; Parker v Rust Plant Servs., Inc., 9 AD3d 671, 673-674 [2004]; compare Karac v City of Elmira, 14 AD3d 842, 844 [2005]).

With respect to the first Espinal exception, plaintiffs alleged that defendants "created and/or increased and exacerbated the hazardous condition" in the parking lot. Further, by their bill of particulars, plaintiffs alleged that defendants "fail[ed] to remove the snow and ice" and "creat[ed] the buildup of ice, dirt and frozen slush, which had accumulated on the ground." Further, plaintiffs alleged that the condition that caused Hutchings' injury was the "slippery and uneven mixture of compacted snow, ice and dirt, and a generally slippery condition including elevation and depression on the surface, which accumulated on the ground in the rear parking area." We find that Supreme Court properly determined that defendants met their initial burdens by establishing that there was no affirmative negligence (see Fung v Japan Airline Co., Ltd., 9 NY3d 351, 361 [2007]).

In opposition to Cenova's motion and Great Choice's cross motion, plaintiffs submitted an affidavit by Howard G. Altschule, a forensic meteorologist. Based on his review of, among other things, the meteorological records and photographs of the parking lot and area where Hutchings fell, Altschule opined that, if the lot had been treated with materials to melt the snow and ice on the day before she fell, "areas of standing water and wet surfaces would have formed, and melt would have pooled at low points on the surface of the parking lot" and, if not treated overnight, these areas would have "frozen and turned to ice" by the time that Hutchings fell the next day. In our view, Altschule's affidavit fails to raise a material question of fact, inasmuch as the evidence demonstrates only that defendants may have failed to clear all of the ice and snow, a fact that does not constitute the affirmative creation of a dangerous condition (see id.; DiGrazia v Lemmon, 28 AD3d 926, 928 [2006], lv denied 7 NY3d 706 [2006]; compare Hannigan v Staples, Inc., 137 AD3d 1546, 1550 [2016] [where contractor may have created dangerous condition by piling chunks of ice which melted then ran downhill and refroze within a depressed area of the parking lot]). Accordingly, Supreme Court properly granted Cenova's motion and Great Choice's cross motion for summary judgment dismissing the complaint against them."

SNOW REMOVAL LIABILITY

Yes, it's summer but winter is coming. In this recent Appellate Division Second Department case on legal malpractice, the court discusses the general rules on liability for snow removal. Balan v Rooney, 2017 NY Slip Op 05801, Decided on July 26, 2017, Appellate Division, Second Department:

""[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 AD3d 945, 947, quoting Mazzella v City of New York, 72 AD3d 755, 756; see Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d 1177; Salvanti v Sunset Indus. Park Assoc., 27 AD3d 546). "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" (Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d at 1177; see Salvanti v Sunset Indus. Park Assoc., 27 AD3d at 546; Chaudhry v East Buffet & Rest., 24 AD3d 493).

Here, the defendant failed to demonstrate his prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for legal malpractice on the ground that the plaintiff could not have prevailed in an action against the property owner. While the defendant demonstrated, prima facie, through certified meteorological data and the plaintiff's deposition testimony, that the accident occurred less than one hour after the snowstorm ceased, he did not eliminate triable issues of fact as to whether the property owner created or exacerbated a hazardous condition through negligent snow removal efforts (see Anderson v Landmark at Eastview, Inc., 129 AD3d 750, 751; Salvanti v Sunset Indus. Park Assoc., 27 AD3d at 546-547; Chaudhry v East Buffet & Rest., 24 AD3d at 494). In particular, in light of the plaintiff's deposition testimony, a triable issue of fact exists as to whether the property owner, upon clearing snow from a small portion of the premises, had left a pile of snow that the plaintiff had to "lift [her] leg" to "cross" over, causing her to slip and fall. Accordingly, that branch of the defendant's motion which was for summary judgment dismissing the legal malpractice cause of action should have been denied."