The Second Department, reversing Supreme Court, determined that, although defendant demonstrated there was a storm in progress in this slip and fall case, there was a question of fact whether the icy condition existed before the storm:
Under the storm in progress rule, a property owner will not be held liable in negligence for accidents occurring as a result of a slippery snow or ice condition “occurring during an ongoing storm or for a reasonable time thereafter” … . Here, in support of its motion, the defendant submitted, inter alia, the affidavit and report of a meteorologist with attached certified climatological data, which demonstrated that, at the time of the plaintiff’s accident, a wintery mix of freezing rain, sleet, and rain was falling and the temperature may have been at or below freezing. Accordingly, the defendant established, prima facie, that a storm was ongoing at the time of the plaintiff’s fall … .
In opposition, however, the plaintiff raised a triable issue of fact, via her General Municipal Law § 50-h hearing testimony, her deposition testimony, and the affidavit of her brother, as to whether the icy condition that caused her fall existed prior to the storm in progress and whether the defendant had constructive notice of the hazard … . Isabel v New York City Hous. Auth., 2019 NY Slip Op 02506, Second Dept 4-3-19