Wheeler v. Grande'Vie Senior Living Community

• Decision Date: 20 July 2006
• Docket Number: 500071.
• Citation: 31 A.D.3d 992,2006 NY Slip Op 05852,819 N.Y.S.2d 188
• Parties: JOHN A. WHEELER et al., Appellants, v. GRANDE'VIE SENIOR LIVING COMMUNITY, Respondent.
• Court: New York Supreme Court — Appellate Division

31 A.D.3d 992

819 N.Y.S.2d 188

2006 NY Slip Op 05852

JOHN A. WHEELER et al., Appellants, v. GRANDE'VIE SENIOR LIVING COMMUNITY, Respondent.

500071.

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

July 20, 2006.

Appeal from an order of the Supreme Court (O'Brien, III, J.), entered April 1, 2005 in Chenango County, which granted defendant's motion for summary judgment dismissing the complaint.

Kane, J.

Plaintiff John A. Wheeler (hereinafter plaintiff) went to defendant's assisted living facility to help his mother-in-law move. When he arrived, it was snowing and someone was plowing the parking lot. After moving some items, plaintiff asked for assistance. In response, Daniel Marsh, one of defendant's maintenance workers, brought a dolly to move a table. Marsh led plaintiff to an emergency exit which was closer to his vehicle than the main door, deactivated the alarm and exited through that door. Marsh led the dolly down a recently shoveled and salted ramp, but plaintiff walked down some nearby stairs leading to the same walkway. Soon after stepping onto the walkway, which plaintiff saw had been shoveled earlier and was covered with only about one inch of snow, he slipped on ice beneath the snow. As a result of injuries sustained in his fall, plaintiff and his wife, derivatively, commenced this personal injury action. Defendant moved for summary judgment. Supreme Court granted that motion because there was a storm in progress at the time of plaintiff's fall. Plaintiffs appeal.

Because there was a storm in progress and plaintiffs failed to raise questions of fact regarding any exception to that doctrine, we affirm. A landowner's duty to take reasonable measures to remedy a storm-created snow or ice condition does not commence until a reasonable time after the storm has ceased (see Sanders v Wal-Mart Stores, Inc., 9 AD3d 595, 595 [2004]). While defendant had no obligation to remove any snow or ice during the storm, liability may result if the efforts it did take created a hazardous condition or exacerbated the natural hazards created by the storm (see Marrone v Verona, 237 AD2d 805, 805 [1997], lv dismissed 90 NY2d 885 [1997]). Defendant submitted sufficient proof that a snow storm was in progress at the time of plaintiff's fall; plaintiffs concede this. The burden then shifted to plaintiffs to raise a triable issue of fact, specifically regarding their allegations that defendant's snow-removal efforts either created a dangerous condition or exacerbated the storm-created condition (see Mangieri v Prime Hospitality Corp., 251 AD2d 632, 633 [1998]; see also Sanders v Wal-Mart Stores, Inc., supra at 595). "[T]he mere failure to remove all snow and ice from a sidewalk or parking lot does not constitute negligence" and does not constitute creation of a hazard (Gentile v Rotterdam Sq., 226 AD2d 973, 974 [1996]). Plaintiffs' evidence failed to raise questions of fact regarding...