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You are here: Home1 / Evidence2 / THERE WAS A QUESTION OF FACT WHETHER THE STORM-IN-PROGRESS DOCTRINE APPLIED...
Evidence, Negligence

THERE WAS A QUESTION OF FACT WHETHER THE STORM-IN-PROGRESS DOCTRINE APPLIED IN THIS SIDEWALK SLIP AND FALL CASE; THEREFORE PLAINTIFFS DID NOT NEED TO DEMONSTRATE THE ICE WAS PREEXISTING (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined there was a question of fact whether the storm-in-progress doctrine applied in this slip and fall case. 

… [I]n this case a trier of fact should be charged with determining whether there was a lull or ongoing storm in progress that supports the continued delay of defendants’ obligation to remedy their premises from hazardous conditions … .

Inasmuch as defendants did not establish that there was a storm in progress, plaintiffs did not need to demonstrate that the ice was preexisting … . To that end, defendants also failed to establish as a matter of law the absence of a hazardous icy condition or whether they had notice and a reasonable period of time to correct such condition. We reach this conclusion particularly in light of the reply affidavit from Altschule [defendants’ meteorologist], who “generally agree[d]” with plaintiffs’ opposing meteorologist that ice may have formed as early as approximately 14 hours prior to the incident — therefore both acknowledging the presence of ice and confirming the maximum duration that it may have existed … . Gagne v MJ Props. Realty, LLC, 2023 NY Slip Op 05769, Third Dept 11-16-23

Practice Point: The jury must decide whether the storm-in-progress doctrine applied in this sidewalk slip and fall. Because the defendants did not demonstrate the doctrine applied, plaintiffs did not need to demonstrate the ice was preexisting.

 

November 16, 2023
Tags: Third Department
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https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2023-11-16 10:06:592023-11-18 10:27:55THERE WAS A QUESTION OF FACT WHETHER THE STORM-IN-PROGRESS DOCTRINE APPLIED IN THIS SIDEWALK SLIP AND FALL CASE; THEREFORE PLAINTIFFS DID NOT NEED TO DEMONSTRATE THE ICE WAS PREEXISTING (THIRD DEPT).
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