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.