Wade Clark Mulcahy LLP

Under New York’s “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.” However, in order for this rule to apply, courts have required defendants to prove that precipitation occurred at or near the time of the accident.

For example, in<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2023/02/Bodoff-v.-Cedarhurst-Park-Corp..pdf">Bodoff v. Cedarhurst Park Corp.</a>,</em> plaintiff slipped and fell on ice and the defendants moved for summary judgment, arguing that the storm in progress rule applied. The Supreme Court denied the motion on the basis that fact issues existed as to whether the rule applied under the circumstances.

The Appellate Division, Second Department agreed and affirmed the decision, finding that the defendants had failed to establish, prima facie, that there was a storm in progress at the time of the accident. In so holding, the Court noted that the defendants’ certified meteorological data and Affidavit from a meteorologist established that only trace amounts of precipitation, totaling less than one-tenth of an inch, fell during the morning of the date of the accident, and that there was no snowfall on the day prior to the incident. The other evidence in the case, including deposition testimony, also presented triable issues of fact as to whether any precipitation occurred at or near the time that plaintiff slipped and fell so the trial court’s denial of summary judgment under the rule was proper.

The <em>Bodoff</em> decision confirms that a defendant seeking to assert a defense under the “storm in progress” rule must have evidence of precipitation in the form of snow, sleet, or freezing rain at or near the time of an accident. The lack of such evidence will likely result in the failure of the defense.

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