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Inconsistent Evidence Not Sufficient For New York’s “Storm in Progress” Rule (NY)

March 24, 2023

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New York’s “storm in progress” rule protects a property owner from liability 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.” However, the burden and quality of proof is important, and a defendant must be careful to corroborate their argument. Even when a lower court grants summary judgement based on the rule, an appellate court may reverse if the proffered evidence is not sufficient to support it.

The Appellate Division, Second Department did just that in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/03/Licari-v.-Brookside-Meadows-LLC.pdf">Licari v. Brookside Meadows, LLC.</a></em> In that case, the plaintiff slipped and fell on ice that formed in the cracks of an uneven, broken walkway located in defendants’ apartment complex. Plaintiff claimed that the icy conditions formed and remained as a result of precipitation that occurred days before the accident. The defendants moved to dismiss based on the “storm in progress” rule, relying on deposition testimony from both the plaintiffs and defendants that described the weather at the time of plaintiff’s accident.

Although the lower court granted defendant’s motion, the Second Department reversed and found that the standard for the “storm in progress” defense was not met. In so holding, the Second Department found that there were inconsistencies as to whether the storm was actually in progress or whether it had ended by the time of the accident. The Court observed that if the storm had ended several days before the accident, then the defendants would at minimum have constructive notice of the frozen walkway cracks. The defendants failed to resolve the confusion as to whether or not the ice at issue existed prior to the storm and the Court that there were too many factual inconstancies to merit a successful “storm in progress” defense.

The <em>Licari</em> case highlights the importance of having clear and consistent evidence in asserting a “storm in progress” defense. The Court made it clear that inconsistent deposition testimony as to the timing of a storm is not sufficient to meet the standard and prevail on a summary judgment motion.

Thank you to Alexander Rabhan for his contribution to this post. Please contact <a href="agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.

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