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ALTHOUGH THERE WAS A STORM IN PROGRESS WHEN PLAINTIFF FELL, PLAINTIFFS RAISED A QUESTION OF FACT WHETHER PREEXISTING SNOW AND ICE WAS THE CAUSE OF THE FALL.

The Second Department determined the defendant met his burden of demonstrating a storm was in progress when plaintiff slipped and fell, but plaintiff then raised a question of fact whether snow and ice which was there prior to the storm was the cause of the fall:

The evidence submitted by the defendant in support of its motion for summary judgment, including certified climatological data, a report from the plaintiffs’ own expert meteorologist, and the transcripts of the deposition testimony of the parties, demonstrated, prima facie, that a storm was in progress at the time of the subject accident … . The plaintiffs do not contend otherwise.

Accordingly, the burden shifted to the plaintiffs to raise a triable issue of fact as to whether the injured plaintiff’s fall was caused by something other than precipitation from the storm in progress … . In order to do so, the plaintiffs were “required to raise a triable issue of fact as to whether the accident was caused by a slippery condition at the location where the [injured] plaintiff fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and that the defendant had actual or constructive notice of the preexisting condition” … . The plaintiffs raised a triable issue of fact in this regard. The evidence relied upon by the plaintiffs in opposition to the defendant’s motion, which included the report of their expert meteorologist, certified climatological data, and the affidavits of the injured plaintiff and two nonparty witnesses, raised a triable issue of fact as to whether the injured plaintiff slipped and fell on old snow and ice that was the product of a prior storm, as opposed to precipitation from the storm in progress, and as to whether the defendant had constructive notice of the preexisting condition… . Burniston v Ranric Enters. Corp., 2015 NY Slip Op 09395, 2nd Dept 12-23-15

NEGLIGENCE (DESPITE STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER PREEXISTING ICE AND SNOW WAS THE CAUSE OF THE FALL)/SLIP AND FALL (DESPITE STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER PREEXISTING ICE AND SNOW WAS THE CAUSE OF THE FALL)/STORM IN PROGRESS (QUESTION OF FACT WHETHER PREEXISTING ICE AND SNOW WAS CAUSE OF FALL)

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