Feliciano v. Interfaith Council for Action, Inc., Index No. 51907/2011

• Decision Date: 07 January 2013
• Docket Number: Index No. 51907/2011
• Citation: 2013 NY Slip Op 33754 (U)
• Parties: GLADYS FELICIANO Plaintiffs, v. INTERFAITH COUNCIL FOR ACTION, INC., Defendant.
• Court: New York Supreme Court

2013 NY Slip Op 33754(U)

GLADYS FELICIANO Plaintiffs,
v.
INTERFAITH COUNCIL FOR ACTION, INC., Defendant.

Index No. 51907/2011

SUPREME COURT OF THE STATE OF NEW YORK WESTCHESTER COUNTY

FILED: January 8, 2013
January 7, 2013

NYSCEF DOC. NO. 47

To commence the statutory time for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.

PRESENT: HON. SAM D. WALKER, J.S.C.

Decision & Order

Seq. 1

The following papers were read on defendants' motion seeking an order of summary judgment pursuant to CPLR §3212:

PAPERS	NUMBERED
Notice of Motion/Affidavit/Exhibits A-D; D, A-K	1

This is an action by plaintiff to recover for personal injuries suffered on February 2, 2011 when she slipped and fell at premises located at 273 Spring Street, Ossining New York and owned by defendant interfaith Council for Action. Defendant alleges that the complaint alleging negligence on the part of Interfaith must be dismissed, as on the date of the plaintiff's slip and fall, there was an active storm in progress. An owner or occupant may not be held liable for injuries caused by a storm that was in progress at the time of the accident (McConologue v. Summer Street Stamford Corp., 16 A.D.3d 468 [2^nd Dept. 2005]) commonly

Page 2

referred to as the "storm in progress" doctrine. Boynton v. Eaves, 66 A.D.3d 1281 (3^rd Dept. 2009); Zone v. State, 21 Misc. 3d 183 (Ct. Cl. 2008). Defendant's motion is unopposed.

DISCUSSION

A party seeking summary judgment bears the initial burden of affirmatively demonstrating its entitlement to summary judgment as a matter of law. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853(1985); Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986). In order to defeat defendants prima facie entitlement to judgment as a matter of law, it was incumbent upon the plaintiff, to come forward with evidentiary proof in admissible form, demonstrating the existence of triable issues of fact. Franks v. G & H Real Estate Holding Corp., 16 A.D.3d 619 (2^nd Dept., 2005), citing, Welwood v. Association for Children with Down Syndrome, 248 A.D.2d 707, 708 (2^nd...