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THE COMPLAINT ALLEGED THE FAILURE TO CLEAR ICE AND SNOW AND CERTAIN BUILDING CODE VIOLATIONS CAUSED HER SLIP AND FALL; THE “STORM IN PROGRESS” RULE ONLY NEGATED THE CAUSE OF ACTION BASED UPON THE FAILURE TO CLEAR THE ICE AND SNOW; THE DEFENDANTS DID NOT DEMONSTRATE THE BUILDING CODE VIOLATIONS WERE INAPPLICABLE; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that, although the “storm in progress” applied to this slip and fall because it was snowing at the time, summary judgment should not have been awarded to defendants. In addition to alleging the negligent failure to clear ice and snow, the complaint alleged the ramp where plaintiff fell violated certain provision of the NYC Building Code. The defendants did not demonstrate the code did not apply. Because there can be more than one proximate cause  the defendants were not entitled to summary judgment:

… “[T]here can be more than one proximate cause of an accident, and generally, it is for the trier of fact to determine the issue of proximate cause” … . Although there is no disagreement that the snow and ice from the storm was a proximate cause of the plaintiff’s fall, Avenue L and the Sesame defendants each failed to establish, prima facie, that the provisions of the 1968, 2008, and 2014 New York City Building Codes relied upon by the plaintiff were inapplicable and that an alleged violation of those provisions did not proximately cause the plaintiff to fall … . Wechsler v Ave. L., LLC, 2025 NY Slip Op 00347, Second Dept 1-22-25

Practice Point: Here plaintiff conceded it was snowing when she slipped and fell, triggering the “storm in progress” rule which let defendants off the hook for any failure to clear ice and snow. But the plaintiff also alleged certain building code violations caused her fall. The defendants did not demonstrate the code was inapplicable so they were not entitled to summary judgment. There can be more than one proximate cause of a slip and fall.

 

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