Snowfall on Sunday: liability precluded under 'storm in progress' doctrine

Giron v. NYCHA, Index No. 22599-2016E (Sup.Ct. Bronx Cty. 2019)

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Plaintiff alleged she fell on a snow-covered exterior staircase that had not been shoveled, salted, sanded or cleaned, claiming that it had snowed the night before her fall but was not snowing at the time of the accident. She sued the owner of the staircase, the New York City Housing Authority.

The Hon. Llinet M. Rosado, J.S.C. granted defendant's motion for summary judgment based upon evidence that plaintiff's accident occurred during a 'storm in progress'. Defendant's witness testified that there was no residual snow or ice on the stairs at the time of the last inspection, at 1:00 pm the day before, and that he had made a record of freezing rain at the time when he reported for work on the morning of the accident. Independent meteorological records supported the testimony, reflecting freezing precipitation in progress at the time and place of plaintiff's fall.

Devoted readers of Newswire will recall that the storm in progress doctrine 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." (See "Meteorological evidence favors defense under 'storm in progress' doctrine", Newswire 10/2/2018).

Plaintiff unsuccessfully sought to rebut the motion with her own deposition testimony to the contrary. That testimony was conclusory, the Court held, and there was no evidence of any residual snow from the last preceding snowfall, eight days earlier.

AGF&J associate John Fronce represented the defendant and briefed and argued the motion.