Sherman v. N.Y. State Thruway Auth.
| Decision Date | 05 May 2016 |
| Docket Number | No. 56,56 |
| Parties | Rodney SHERMAN, Appellant, v. NEW YORK STATE THRUWAY AUTHORITY, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Norman M. Block, P.C., Hawthorne (Norman M. Block of counsel), for appellant.
McGaw, Alventosa & Zajac, Jericho (Andrew Zajac of counsel), for respondent.
Lawrence Heisler, Brooklyn, for New York City Transit Authority, amicus curiae.
The order of the Appellate Division should be affirmed, with costs.
Claimant, a New York State Trooper, slipped and fell on an icy sidewalk outside the trooper barracks in Newburgh. The sidewalk is located on property owned and maintained by defendant New York State Thruway Authority. Claimant commenced this personal injury action against the Authority, alleging that it negligently failed to maintain the sidewalk by failing to remove ice and/or place salt after a winter storm. Following discovery, both parties moved for summary judgment. As relevant here, the Authority argued that it was entitled to judgment as a matter of law under the “storm in progress” doctrine. The Court of Claims denied the parties' motions, finding questions of fact as to whether a storm was in progress at the time of claimant's fall. The Appellate Division reversed and granted the Authority summary judgment (120 A.D.3d 792, 991 N.Y.S.2d 344 [2d Dept. 2014]
). We granted claimant leave to appeal (25 N.Y.3d 905, 2015 WL 2105848 [2015] ) and now affirm.
Although a landowner owes a duty of care to keep his or her property in a reasonably safe condition, he “will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter” (Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 735, 810 N.Y.S.2d 121, 843 N.E.2d 748 [2005]
). The Authority established prima facie that it was entitled to judgment as a matter of law by submitting uncontroverted evidence that a storm was ongoing at the time of claimant's fall. Claimant admitted at his deposition that “an ice storm” had taken place the night before the accident, and an “intermittent wintry mix” of snow, sleet and rain persisted the next morning until 6:50 a.m., when claimant arrived at the trooper barracks for work. Claimant testified, and a certified weather report confirmed, that it was still raining at 8:15 a.m. when he walked to his vehicle and slipped on a patch of ice. The undisputed facts that precipitation was falling at the time of claimant's accident and had done so for a substantial time prior thereto, while temperatures remained near freezing, established that the storm was still in progress and that the Authority's duty to abate the icy condition had not yet arisen. In opposition, claimant failed to raise a triable issue of fact.
Therefore, the Appellate Division properly granted the Authority's motion for summary judgment dismissing the complaint.
RIVERA
, J. (dissenting).
This appeal involves the application on summary judgment of the storm-in-progress doctrine to claimant Rodney Sherman's personal injury action against the New York State Thruway Authority, arising from his slip and fall on an icy patch of a sidewalk under the care and responsibility of the Authority. On the record before us, triable issues of material fact exist as to whether the storm in question had ended, and if so whether a reasonable period of time had passed to hold the Authority liable for negligence resulting in claimant's injuries. Therefore, the Appellate Division should be reversed, and I dissent from the majority's determination to the contrary.
“Since [summary judgment] deprives [a] litigant of [the party's] day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues” (Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974]
). “[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]
). Thus, “[a] party moving for summary judgment must demonstrate that ‘the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment’ in the moving party's favor” (Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014]
, quoting CPLR 3212[b] ). “This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party” (William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475, 982 N.Y.S.2d 813, 5 N.E.3d 976 [2013] [internal quotation marks omitted] ), “ and every available inference must be drawn in the [non-moving party's] favor” (De Lourdes
Torres v. Jones, 26 N.Y.3d 742, 763, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016] ). If the moving party makes out a prima facie showing, “the burden then shifts to the non-moving party to establish the existence of material issues of fact which require a trial of the action” (Jacobsen, 22 N.Y.3d at 833, 988 N.Y.S.2d 86, 11 N.E.3d 159 [internal quotation marks omitted] ).
In support of its summary judgment motion, the Authority relied on the storm-in-progress doctrine, which provides that “[a] property owner will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter” (Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 735, 810 N.Y.S.2d 121, 843 N.E.2d 748 [2005]
).
“The reasonableness of the time within which [an owner] must respond to its duty to clear the sidewalks is measured from the time that the storm comes to an end since ... ‘responsibility for ice conditions arises, at the most, only after the lapse of a reasonable time for taking protective measures and never while a storm is still in progress' ” (Valentine v. City of New York, 86 A.D.2d 381, 384, 449 N.Y.S.2d 991 [1st Dept.1982]
, affd. 57 N.Y.2d 932, 457 N.Y.S.2d 240, 443 N.E.2d 488 [1982], quoting Valentine v. State of New York, 197 Misc. 972, 975, 95 N.Y.S.2d 827 [Ct.Cl.1950], affd. 277 App.Div. 1069, 100 N.Y.S.2d 567 [3d Dept.1950], lv. denied 277 App.Div. 1080, 101 N.Y.S.2d 248 [1950] ).
The doctrine reflects practical concerns related to the challenges and dangers of maintaining property in reasonably safe conditions during inclement weather (see Powell v. MLG Hillside Assoc., 290 A.D.2d 345, 345, 737 N.Y.S.2d 27 [1st Dept.2002]
). It “allow[s] workers a reasonable period of time to clean the walkways,” and “is designed to relieve the worker(s) of any obligation to shovel snow while continuing precipitation or high winds are simply re-covering the walkways as fast as they are cleaned, thus rendering the effort fruitless” (id. ). Thus, when weather conditions are no longer storm-like, or where a storm has turned to rainy conditions that neither imperil workers nor frustrate cleanup efforts, the temporary suspension of a property owner's duty of care is no longer justified.
In accordance with these legal principles, in order for the Authority to establish its storm-in-progress defense and thus carry its prima facie burden on summary judgment, it had to proffer admissible evidence that at the time of Sherman's accident there was an ongoing storm, or that the storm had ceased and a reasonable amount of time had not yet elapsed before the Authority was required to ameliorate the icy sidewalk conditions. In support of the motion, the Authority submitted deposition testimony from four individuals— Sherman, an Authority maintenance supervisor, and two other Authority employees—as well as a certified weather report from the National Climatic Data Center for Stewart International Airport, which is...
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