Thompson v. Menands Holding, LLC

• Decision Date: 10 August 2006
• Docket Number: 500117.
• Citation: 32 A.D.3d 622,820 N.Y.S.2d 172,2006 NY Slip Op 06175
• Parties: MARIE THOMPSON et al., Respondents, v. MENANDS HOLDING, LLC, et al., Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

32 A.D.3d 622

820 N.Y.S.2d 172

2006 NY Slip Op 06175

MARIE THOMPSON et al., Respondents, v. MENANDS HOLDING, LLC, et al., Appellants, et al., Defendant.

500117.

Appellate Division of the Supreme Court of the State of New York, Third Department.

August 10, 2006.

Appeals (1) from an order of the Supreme Court (Teresi, J.), entered November 30, 2005 in Albany County, which denied certain defendants' motion for summary judgment dismissing the complaint against them, and (2) from an order of said court, entered January 3, 2006 in Albany County, which, upon reconsideration, adhered to its prior order.

Cardona, P.J.

According to plaintiff Marie Thompson, she sustained injuries on April 4, 2003, at approximately 8:00 A.M., when she slipped and fell on ice in a parking lot located on property owned by defendant Menands Holding, LLC and maintained by defendant Bornado Realty Trust (hereinafter collectively referred to as defendants) in the Village of Menands, Albany County. At the time of the incident, Thompson was exiting her vehicle in order to enter her place of employment. During her examination before trial, Thompson indicated that she did not remember what the weather conditions were at the time of the accident, nor did she recall seeing any accumulated ice or snow when entering the parking lot. After she fell, she noticed ice in the parking lot in "[b]etween the parked cars and the lanes that you go in the cars [and] in the parking spot itself." She described the ice as "glassy" and agreed that it looked "like the color of the parking lot surface." She stated that after she entered her workplace she informed the building supervisor that she fell in the parking lot, which was a "sheet of ice" and needed to be cleaned up.

Thereafter, Thompson and her husband, derivatively, commenced this action alleging, among other things, that defendants negligently maintained the parking lot by allowing ice to accumulate. After joinder of issue, defendants moved for summary judgment dismissing the complaint on the ground that there was an ice storm in progress at the time of Thompson's fall. Supreme Court denied that motion and, subsequently, upon granting defendants' motion for reconsideration, adhered to its prior order, resulting in these appeals.

Defendants contend that Supreme Court erred when it denied their motion for summary judgment based upon the "storm in progress" doctrine. Notably, the duty of a landowner "`to remedy a dangerous condition caused by a storm is suspended while the storm is in progress and for a reasonable time after it has ceased,' even if there is a lull in the course of the storm" (Martin v Wagner, 30 AD3d 733, 734 [2006], quoting Sanders v Wal-Mart Stores, Inc., 9 AD3d 595, 595 [2004])...