The First Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the ice on which plaintiff slipped and fell pre-existed the recent snow fall. Plaintiff slipped and fell at around 7:30 am and, pursuant to the New York City Administrative Code, defendant had until 11 am to clear the recent snow (storm in progress rule):
Because it snowed overnight, defendant had until 11 a.m. to clear any fresh snow and ice … . However, an issue of fact exists regarding whether the ice on which plaintiff slipped was preexisting. Plaintiff testified and submitted witness affidavits to the effect that the ice was dirty and trod upon, and had been present for days … .
Moreover, while defendant submitted certified climatological records from Central Park in reply and in opposition to plaintiff’s cross motion, defendant cannot remedy a fundamental deficiency in its moving papers with evidence submitted in reply … , although they may be considered in opposition to plaintiff’s cross motion. In any event, the records show that the temperatures remained below or only slightly above freezing during much of the six days after defendant asserts that the last snow fall occurred, and defendant offers only speculation that such temperatures would have melted previous accumulations of snow and ice. Ruland v 130 FG, LLC, 2020 NY Slip Op 01558, First Dept 3-5-20