Storm In Progress Rule – Premises Liability

In this personal injury suit, plaintiff slipped on ice a few steps away from the entrance to a subway station.  She sued the Transit Authority and an adjacent delicatessen.  Both defendants moved for summary judgment based on the “storm in progress” rule as it was snowing at the time of the accident.  Supreme Court denied the motions, but the Appellate Division reversed, as the evidence was uncontroverted that it was snowing at the time of the accident, and plaintiff had no proof that the ice was pre-existing.—LNR

On February 26, 2014, sometime between 9:30 a.m. and 10:00 a.m., the plaintiff allegedly exited a subway station on Caton Avenue in Brooklyn, took two or three steps, and then slipped and fell on ice. She commenced this personal injury action against the defendants New York City Transit Authority and Caton Deli & Luncheonette Corp., alleging that they were negligent in maintaining the area of the sidewalk where the accident occurred. Caton moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and NYCTA separately moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court denied both motions. NYCTA appeals, and Caton cross-appeals.

“Under the so-called storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.” A defendant property owner may establish a prima facie case for summary judgment by presenting evidence that there was a storm in progress when the plaintiff allegedly slipped and fell.

Here, the evidence that NYCTA submitted in support of its motion, including a transcript of the plaintiff’s testimony at her General Municipal Law § 50-h hearing, a transcript of the plaintiff’s deposition testimony, and certified climatological data, demonstrated, prima facie, that the subject accident occurred while a storm was in progress.  In this regard, the plaintiff testified that it was snowing at the time of the accident, and the certified climatological data confirms that testimony.

In opposition, the plaintiff failed to raise a triable issue of fact. Her contention that she slipped and fell on ice that existed prior to the storm that was in progress on the date of the accident was based on speculation and conjecture. Indeed, the plaintiff presented no evidence, expert or otherwise, that the ice on which she fell was not produced by the storm in progress on the date of the accident. Therefore, the Supreme Court should have granted NYCTA’s motion for summary judgment dismissing the complaint insofar as asserted against it.

Allen v New York City Tr. Auth.

2019 NY Slip Op 04121

Decided on May 29, 2019

Appellate Division, Second Department