Snow and ice cases are difficult.  Fall too soon and the landowner gets the benefit of the “strorm-in-progress” defense.  Fall at the right time, and you have to prove that the landowner created the situation.  Hire the wrong attorney, and your legal malpractice case difficulty rises to the Nth degree.  So, Balan v Rooney  2017 NY Slip Op 05801  Decided on July 26, 2017  Appellate Division, Second Department is a notable win for plaintiff.

“Shortly after a snowstorm, when attempting to enter the building in which she lived, the plaintiff allegedly slipped on ice and was injured. Three days after the accident, the plaintiff consulted with and hired the defendant to represent her in an action against the property owner. The defendant failed to commence an action prior to the expiration of the statute of limitations. The plaintiff then commenced this action to recover damages for legal malpractice and breach of contract. The defendant moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion.”

“”[A] landowner generally cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter'” (Weller v Paul, 91 AD3d 945, 947, quoting Mazzella v City of New York, 72 AD3d 755, 756; see Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d 1177; Salvanti v Sunset Indus. Park Assoc., 27 AD3d 546). “However, once a landowner elects to engage in snow removal activities, it is required to act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm” (Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d at 1177; see Salvanti v Sunset Indus. Park Assoc., 27 AD3d at 546; Chaudhry v East Buffet & Rest., 24 AD3d 493).

Here, the defendant failed to demonstrate his prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for legal malpractice on the ground that the plaintiff could not have prevailed in an action against the property owner. While the defendant demonstrated, prima facie, through certified meteorological data and the plaintiff’s deposition testimony, that the accident occurred less than one hour after the snowstorm ceased, he did not eliminate triable issues of fact as to whether the property owner created or exacerbated a hazardous condition through negligent snow removal efforts (see Anderson v Landmark at Eastview, Inc., 129 AD3d 750, 751; Salvanti v Sunset Indus. Park Assoc., 27 AD3d at 546-547; Chaudhry v East Buffet & Rest., 24 AD3d at 494). In particular, in light of the plaintiff’s deposition testimony, a triable issue of fact exists as to whether the property owner, upon clearing snow from a small portion of the premises, had left a pile of snow that the plaintiff had to “lift [her] leg” to “cross” over, causing her to slip and fall. Accordingly, that branch of the defendant’s motion which was for summary judgment dismissing the legal malpractice cause of action should have been denied.”