DEFENDANT PROPERTY OWNER DEMONSTRATED THAT THE STORM IN PROGRESS DOCTRINE APPLIED IN THIS SLIP AND FALL CASE (A PROPERTY OWNER WILL NOT BE LIABLE FOR A SNOW AND ICE CONDITION UNTIL A REASONABLE TIME AFTER THE PRECIPITATION HAS STOPPED); THE BURDEN THEN SHIFTED TO PLAINTIFF TO SHOW DEFENDANT’S EFFORT TO REMOVE SNOW HOURS BEFORE THE FALL CREATED THE DANGEROUS CONDITION; TO MEET THAT BURDEN AN EXPERT AFFIDAVIT SHOULD HAVE BEEN, BUT WAS NOT, SUBMITTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the property owner’s (Site A’s) motion for summary judgment in this ice and snow slip and fall case should have been granted. The evidence demonstrate it was still snowing at the time of plaintiff’s fall and plaintiff did not submit an expert affidavit demonstrating how defendant’s snow removal efforts exacerbated the condition:

Site A made a prima facie showing of entitlement to summary judgment based on the storm-in-progress doctrine, because the meteorological data, its expert meteorological affidavit, and plaintiff’s deposition testimony annexed to its moving papers establish that there was a storm in progress when the accident occurred … . …

Although the burden shifted to plaintiff to establish that Site A created the alleged condition or made it more hazardous by attempting to remove the precipitation from the driveway about five hours before he fell, plaintiff failed to meet that burden as he submitted no expert affidavit explaining how Site A, by not salting or sanding the area before the accident, could have created or exacerbated the naturally occurring ice condition … . Colon v Site A – Wash. Hgts., 2022 NY Slip Op 03173, First Dept 5-12-22

Practice Point: Here in this ice and snow slip and fall case, the defendant property owner presented prima facie proof that the storm-in-progress doctrine applied because it was snowing hours before plaintiff fell and was still snowing when plaintiff fell. The burden then shifted to the plaintiff to show that defendant’s snow removal efforts undertaken hours before the fall exacerbated the dangerous condition. Because plaintiff did not submit an expert affidavit on that issue, plaintiff’s burden of proof was not met.