Many a snow and ice case has been lost over the years, and often there are attorney mistakes that accompany the loss. Whether the mistake caused the loss is a legal malpractice question, and one which is illustrated in Blair v Loduca 2018 NY Slip Op 05744 [164 AD3d 637]
August 15, 2018 Appellate Division, Second Department. The attorneys did not properly serve the underlying defendants, but the Second Department determined that the case could not be won. Query: Why did the attorneys take the case in the first place?
“In 2008, the plaintiff, who was a security guard for an apartment building, allegedly was injured when she slipped and fell on ice outside the building during a snowstorm. A few months later, she retained the defendants to prosecute an action to recover damages for her personal injuries (hereinafter the underlying action). The Supreme Court granted a motion by the defendant in the underlying action pursuant to CPLR 3211 (a) (8) to dismiss the complaint for lack of personal jurisdiction over that defendant, a limited liability company which was formally dissolved in 2007 and did not own the building at the time of the accident. Subsequently, the plaintiff commenced this action against the defendants, alleging that they committed legal malpractice in the underlying action by suing the wrong defendant and by doing so just before the expiration of the statute of limitations, despite having been retained by the plaintiff shortly after the accident.
After discovery in this action, the defendants moved for summary judgment dismissing the complaint on the basis that the underlying action was not viable due to, among other things, the storm in progress rule. The Supreme Court denied the motion, finding that triable issues of fact existed as to whether the property owner created or exacerbated the dangerous condition that allegedly caused the plaintiff’s accident. The defendants appeal.”
“In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (see Martino v Patmar Props., Inc., 123 AD3d 890, 890 ; Kruger v Donzelli Realty Corp., 111 AD3d 897 ; Smith v Christ’s First Presbyt. Church of Hempstead, 93 AD3d 839 ; Meyers v Big Six Towers, Inc., 85 AD3d 877 ). “Under the so-called ‘storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” (Marchese v Skenderi, 51 AD3d 642, 642 ; see Solazzo v New York City Tr. Auth., 6 NY3d 734 ; Dumela-Felix v FGP W. St., LLC, 135 AD3d 809, 810 ; McCurdy v KYMA Holdings, LLC, 109 AD3d 799, 799 ; Smith v Christ’s First Presbyt. Church of Hempstead, 93 AD3d 839, 840 ; Weller v Paul, 91 AD3d 945, 947 ; Mazzella v City of New York, 72 AD3d 755, 756 ). If a storm is ongoing, and a property owner elects to remove snow, the owner must do so with reasonable care or it could be held liable for creating a hazardous condition or exacerbating a natural hazard created by the storm (see Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d 1177 ; Petrocelli v Marrelli Dev. Corp., 31 AD3d 623 ; Salvanti v Sunset Indus. Park Assoc., 27 AD3d 546 ; Chaudhry v East Buffet & Rest., 24 AD3d 493 ). In such an instance, that property owner, if moving for summary judgment in a slip-and-fall case, must demonstrate in support of his or her motion that the snow removal efforts he or she undertook neither created nor exacerbated the allegedly hazardous condition which caused the injured plaintiff to fall (see Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d at 1177).
In support of their motion for summary judgment dismissing the complaint in this action, the defendants submitted the plaintiff’s deposition testimony, the deposition testimony of the building’s doorman, the affidavit of a meteorologist, and certified climatological data. These submissions demonstrated that a storm was in progress at the time of the accident, that there was no preexisting ice on the ground when the storm commenced, and that the property owner did not create or exacerbate the allegedly dangerous condition created by the storm in progress (see Aronov v St. Vincent’s Hous. Dev. Fund Co., Inc., 145 AD3d 648, 649 ; Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d at 1177; Ali v Village of Pleasantville, 95 AD3d 796, 797 ). Since the defendants made a prima facie showing that the storm in progress rule applied to the underlying action, the burden shifted to the plaintiff to show that something other than the precipitation from the storm in progress caused the accident (see Baker v St. Christopher’s Inn, Inc., 138 AD3d 652, 653 ; Burniston v Ranric Enters. Corp., 134 AD3d 973, 974 ; Meyers v Big Six Towers, Inc., 85 AD3d 877, 877-878 ; Alers v La Bonne Vie Org., 54 AD3d 698, 699 ). The plaintiff failed to raise a triable issue of fact.”