Questions of Fact Exist Regarding Ice Formation Prior to Snow Storm

In Townsend v. City of New York, et al (Index No. 711239/17, Queens County), the Appellate Division, Second Department recently affirmed a lower court's denial of a defendant's motion for summary judgment in a slip-and-fall due to ice case.  The case arose in January 2017, when the plaintiff allegedly slipped and fell on a walkway at the Queensbridge Houses South, in Long Island City.  At his 50-H hearings, the plaintiff testified that he fell due to ice; and at his deposition during the discovery process, he testified that the hazard was "dirty, crunchy" snow.  It is undisputed that at the time the plaintiff fell, it was snowing, with at least some snow accumulated on the ground.  At some point during the litigation, the defense filed a motion for summary judgment, seeking to dismiss the case by way of the "storm in progress" doctrine (which, if accepted by the Court, could result in a case dismissal).  The motion was denied, and the defense appealed.

The Appellate Division, Second Department notes applicable case law, including a case recently handled by Marino & Marino, P.C. titled Maharaj v. Kreidenweis (in which this firm, in March 2023, successfully defeated on appeal a motion for summary judgment from a defendant property owner in a slip-and-fall/ice case), as the Court stated the following: "As the proponent...of the motion for summary judgment, the defendant...had the burden of establishing, prima facia, that [it] neither created the icy condition nor had actual or constructive notice of its existence for a sufficient length of time to discovery and remedy it [citing Maharaj v. Kreidenweis, 214 AD3d 717, 719]."

The Court then goes on to hold that the lower court properly denied the defendants' motion - as even though the defense properly satisfies their summary judgment burden, the plaintiff, in opposition, raised triable issues of fact.  Particularly, the Court held: "An affidavit of the plaintiff's expert, in combination with the plaintiff's testimony and the sworn statement of the sole witness to the accident, was sufficient to raise a triable issue of fact as to whether the plaintiff slipped on ice, rather than snow, and whether such ice formed prior to the storm such that the defendant had a duty to make the path safe prior to the alleged time of the plaintiff's accident."

Salvatore R. Marino, Esq.