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Meteorological evidence favors defense under 'storm in progress' doctrine; Housing Authority wins summary judgment on liability for slip-and-fall claim

Ysabel Batista v. New York City Housing Authority, et al., Index 162515/2014E (Sup.Ct. New York Cty. Sept. 26 2018)

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The Complaint alleged that plaintiff was injured because the defendant New York City Housing Authority (NYCHA) failed to properly remove snow and ice from the premises where she fell. But the record showed it was still snowing when plaintiff slipped. In a detailed Decision and Order, the Supreme Court granted the NYCHA's motion for summary judgment.

In support of its motion, NYCHA submitted not only the plaintiff's undisputed 50-H and deposition testimony, and its own snow removal records, but also a large body of meteorological data from the time of the slip and fall, together with the affidavit of a Certified Consulting Meteorologist recognized by the American Meteorological Society. He provided an in-depth weather analysis and forensic weather investigation to determine weather conditions in the area. He concluded that there was no snow or ice present on the ground prior to the powerful storm that happened at the time; and that the storm caused mostly continuous periods of light to moderate and occasionally heavy snow before and after plaintiff's fall. Plaintiff contended there had been a lull in the storm, when NYCHA ought to have attended to some allegedly pre-existing ice.

The Honorable Robert D. Kalish issued a thorough Decision for the Court, holding that NYCHA was not liable for plaintiff's fall that occurred while a storm was in progress; that plaintiff's theory that she slipped on pre-existing ice was only speculative; and that there was no question of fact as to whether NYCHA had caused or created the icy condition. "For this Court to impose a duty on NYCHA to remove the snow and eliminate all slippery conditions here would cut against the rationale of the storm in progress doctrine, which 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 rending the effort fruitless.'"

The Decision illustrates the challenges that premises owners face in avoiding liability, even when the facts and the law clearly go in their favor. Effective defense still requires marshaling those facts, and sometimes even expert opinion, as well as the articulation of governing law and doctrine.

AGF&J Partner Chris Christofides represented NYCHA, and he briefed and argued the motion.