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ALTHOUGH PLAINTIFF FELL DURING A SNOWSTORM, THE DEFENDANTS DID NOT DEMONSTRATE THE SLIPPERY CONDITION WAS NOT THE RESULT OF A PRIOR STORM; SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this ice and snow slip and fall case, determined defendants did demonstrate entitlement to summary judgment based on the storm in progress rule. Although defendants proved a snowstorm was in progress when plaintiff fell, they did not demonstrate the slippery condition was not the result of a prior storm:

“Under the storm in progress rule, ‘[a] property owner will not be held liable in negligence for a plaintiff’s injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter'” … .

Here, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint based on the storm in progress rule. Although the evidence submitted by the defendants in support of their motion established that a snowstorm was in progress at the time of the plaintiff’s fall, it failed to eliminate triable issues of fact as to whether the slippery condition upon which the plaintiff fell was the result of a prior storm, rather than the storm that was then in progress, and whether the defendants had constructive notice of the pre-existing condition … . Batista v Allerton Ave Estates, LLC, 2026 NY Slip Op 05265, Second Dept 9-16-26

Practice Point: Plaintiff fell during a snowstorm and Supreme Court granted summary judgment to defendants under the storm in progress rule. The Second Department reversed because the defendants did not demonstrate the slippery condition was not the result of a prior storm.

 

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