Newsome v. Cservak
| Decision Date | 18 May 1987 |
| Citation | 130 A.D.2d 637,515 N.Y.S.2d 564 |
| Parties | Ethelyn NEWSOME, et al., Appellants, v. Donna CSERVAK, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Moran, Spiegel, Pergament & Brown, Poughkeepsie (John J. Basso, of counsel), for appellants.
Dupee, Madison & Hoover, Goshen (Jeffrey G. Shapiro, Peter J. Madison and George Kohl, of counsel), for respondents Cservak.
Grogan & Botti, P.C., Goshen (Gerard T. Grogan, of counsel), for respondent Lee Wilson.
Kenneth J. Burke, Rhinebeck (Joseph D. Ahearn and Michael Majewski, of counsel), for respondents Mid-Hudson Mall Associates and Muss-Tankoos Corp.
Before MOLLEN, P.J., and THOMPSON, BROWN and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Dutchess County (Benson, J.), entered July 16, 1985, which is in favor of the defendants Mid-Hudson Mall Associates and Muss-Tankoos Corporation, upon the granting of their motion pursuant to CPLR 4401 for judgment as a matter of law, made at the close of the evidence and in favor of the defendants Richard Cservak, Donna Cservak and Lee Wilson, upon a jury verdict.
ORDERED that the judgment is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
It is fundamental that a party in possession or control of real property may be held liable for a hazardous condition created on its premises as the result of the accumulation of snow or ice during a storm only after the lapse of a reasonable time for taking protective measures subsequent to the cessation of the storm (Valentine v. City of NY, 86 A.D.2d 381, 449 N.Y.S.2d 991, affd. 57 N.Y.2d 932, 457 N.Y.S.2d 240, 443 N.E.2d 488; Falina v. Hollis Diner Inc., 281 App.Div. 711, 118 N.Y.S.2d 137, affd. 306 N.Y. 586, 115 N.E.2d 686; Rothrock v. Cottom, 115 A.D.2d 242, 495 N.Y.S.2d 857; Moorhead v. Hummel, 36 A.D.2d 682, 683, 319 N.Y.S.2d 672). All of the evidence presented by the plaintiffs in this case indicated that the accident in question occurred while the storm was still in progress. Accordingly, the defendants Mid-Hudson Valley Mall Associates and Muss-Tankoos Corporation could not be held at fault for the alleged hazardous condition of snow and ice on the exit ramp to the South Hills Mall which was created by the storm (see, Falina v. Hollis Diner Inc., supra; Rothrock v. Cottom, supra; Moorhead v. Hummel, supra).
The plaintiffs contend that even if there is no affirmative legal duty to correct hazardous conditions created on one's premises by the accumulation of ice and snow during a storm until after the cessation of the storm, the jury could still have reasonably found the defendants Mid-Hudson Mall Associates and Muss-Tankoos Corporation liable because there was evidence that they failed to follow a self-imposed policy of sanding and salting the parking lot and entrance roads to the mall as...
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