SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
240
CA 13-01607
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.
KATHLEEN M. KORTHALS, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
LCB CAPITAL, LLC, DEFENDANT-APPELLANT.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AMANDA L. MACHACEK OF
COUNSEL), FOR DEFENDANT-APPELLANT.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered April 11, 2013 in a personal injury action.
The order denied the motion of defendant for summary judgment.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this slip and fall personal injury action,
defendant property owner appeals from an order denying its motion for
summary judgment dismissing the complaint. According to defendant,
Supreme Court should have granted its motion because there was a storm
in progress when plaintiff slipped and fell on ice outside its
apartment building in Kenmore, and it therefore had no duty to remedy
the allegedly dangerous condition prior to the accident (see Solazzo v
New York City Tr. Auth., 6 NY3d 734, 735; Brierley v Great Lakes Motor
Corp., 41 AD3d 1159, 1160). We conclude that the court properly
denied defendant’s motion.
The meteorological records submitted by defendant in support of
its motion establish that the alleged storm, which consisted of
intermittent freezing rain and mist, ended no later than 4:52 a.m.,
when the last precipitation was recorded in the area. Plaintiff fell
approximately four hours later, and radar imagery submitted by
defendant showed that there were “mainly clear skies” in Kenmore at
the time of the accident. In addition, the last freezing rain
advisory was cancelled at 6:49 a.m., and there had been no freezing
rain since 12:27 a.m. We thus agree with plaintiff that
“[d]efendant[’]s[] submissions establish that the storm had ended at
the time of plaintiff’s fall, and there is a triable issue of fact
whether a reasonable period of time had passed since the abatement of
the storm to impose a duty on the defendant[]” to remedy the dangerous
icy condition caused by the alleged storm (Boarman v Siegel, Kelleher
-2- 240
CA 13-01607
and Kahn, 41 AD3d 1247, 1248; see Alexis v City of New York, 111 AD3d
527, 528; Helms v Regal Cinemas, Inc., 49 AD3d 1287, 1288). Inasmuch
as defendant failed to meet its initial burden, we need not review the
sufficiency of plaintiff’s opposing papers (see Winegrad v New York
Univ. Med. Ctr., 64 NY2d 851, 853).
Entered: March 28, 2014 Frances E. Cafarell
Clerk of the Court