Wade Clark Mulcahy LLP

When defendants move for summary judgment in New York, the evidence presented must meet the required standards. Generally, evidence submitted in support of a motion for summary judgment must be in admissible form and certain records must be affirmed or certified. The failure to provide such evidence can be fatal to summary judgment motions as seen in a recent decision of the Second Department. 

In Ahmed v. Fulton Nostrand, LLC, the plaintiff was injured when she allegedly slipped and fell on ice on a Brooklyn sidewalk. She sued the adjacent store and its landlord, and both defendants moved for summary judgement based on New York’s “storm in progress” rule, which exempts property owners from liability for accidents caused by snow and ice during an ongoing storm until a reasonable time has passed for the owners to address the hazards. The Supreme Court accepted this argument and granted the defendants' motion.

The Second Department reversed, holding that defendants’ weather records showing that a storm was still ongoing near the time of plaintiff’s alleged accident were not certified and that the deposition testimony did not conclusively resolve whether there was a storm in progress at the time of the accident or if plaintiff had slipped on a preexisting condition. The Second Department thus held that defendants were unable to eliminate all triable issues of fact as to the storm in progress defense and the Supreme Court erred in awarding summary judgment to defendants.

The Ahmed decision underscores the importance of using certified climatological data in lawsuits involving weather conditions at the time of an accident. Without such evidence, a defendant will be unable to establish the necessary basis for asserting a “storm in progress” defense to a premises liability claim.

Thank you to Christian Thompson for his contribution to this post.