The Second Department, reversing Supreme Court, determined a question of fact about the storm in progress proof precluded summary judgment in favor of the defendants in this slip and fall case. In support of the motion, defendants submitted plaintiff’s deposition testimony and climatological data. Because there was a conflict between those two sources of evidence, summary judgment was not available:
“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'” … . Here, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint … based on the storm in progress rule. The climatological data submitted by the defendants in support of their motion contradicted the plaintiff’s deposition testimony, which the defendants also submitted, as to whether precipitation was falling at or near the time of the accident. Since the evidence submitted by the defendants was in conflict and, thus, could not establish, prima facie, that the storm in progress rule applied … , the court should have denied that branch of their motion which was for summary judgment dismissing the complaint … regardless of the sufficiency of the plaintiff’s opposition papers … . Pecoraro v Tribuzio, 2017 NY Slip Op 08386, Second Dept 11-29-17
NEGLIGENCE (SLIP AND FALL, STORM IN PROGRESS, DEFENDANTS SUBMITTED CONFLICTING EVIDENCE ABOUT THE WEATHER IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (STORM IN PROGRESS, DEFENDANTS SUBMITTED CONFLICTING EVIDENCE ABOUT THE WEATHER IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STORM IN PROGRESS (SLIP AND FALL, DEFENDANTS SUBMITTED CONFLICTING EVIDENCE ABOUT THE WEATHER IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))