The Fourth Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined defendants demonstrated they were entitled to summary judgment under the storm in progress rule. The dissenters argued there was a question of fact whether the icy condition was there before the storm:
… [W]e conclude that defendants established as a matter of law “that a storm was in progress at the time of the accident and, thus, that [they] had no duty to remove the snow [or] ice until a reasonable time ha[d] elapsed after cessation of the storm’ ” … .
Where, as here, a defendant’s own submissions do not raise an issue of fact whether the icy condition existed before the storm, the burden shifts to the plaintiff “to raise a triable issue of fact whether the accident was caused by a slippery condition at the location where the plaintiff fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and that the defendant had actual or constructive notice of the preexisting condition’ ” …
Contrary to plaintiff’s contentions, nothing in her deposition testimony, which was submitted by defendants in support of their respective motions, raised a triable issue of fact whether the ice she allegedly observed existed before the storm … , and the evidence that plaintiff submitted in opposition to the motions also did not raise a triable issue of fact. Battaglia v MDC Concourse Ctr., LLC, 2019 NY Slip Op 06310, Fourth Dept 8-22-19