        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

330
CA 13-01668
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


FRANCINE MANN, PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WEGMANS FOOD MARKETS, INC., DEFENDANT-APPELLANT.


THE LAW FIRM OF JANICE M. IATI, P.C., ROCHESTER (JANICE M. IATI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SCHIANO LAW OFFICE, P.C., ROCHESTER (CHARLES A. SCHIANO, JR., OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an amended order of the Supreme Court, Monroe County
(Ann Marie Taddeo, J.), entered May 3, 2013. The amended order denied
defendant’s motion for summary judgment.

     It is hereby ORDERED that the amended order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint is dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she slipped and fell on ice in defendant’s
parking lot. Defendant moved for summary judgment dismissing the
complaint, contending that it had no duty to correct the hazardous
condition of the parking lot because the storm had ceased for only 15
minutes at the time of the accident, and Supreme Court denied the
motion. We reverse.

     We conclude that defendant met its initial burden by submitting
evidence that a storm was in progress at the time of the accident and,
thus, that defendant “had no duty to remove the snow and ice ‘until a
reasonable time ha[d] elapsed after cessation of the storm’ ” (Glover
v Botsford, 109 AD3d 1182, 1183). The accident occurred at
approximately 5:15 p.m. on December 22, 2010, when plaintiff exited
defendant’s store. According to defendant’s expert meteorologist and
the weather reports upon which he relied, light snow mixed with a
freezing drizzle fell from 3:00 to at least 5:00 p.m. Contrary to
plaintiff’s contention, she failed to raise an issue of fact by
submitting evidence that the precipitation had eased or ceased at the
time of her accident. “ ‘[E]ven if there was a lull or break in the
storm around the time of plaintiff’s accident, this does not establish
that defendant had a reasonable time after the cessation of the storm
to correct hazardous snow or ice-related conditions’ ” (Baia v
Allright Parking Buffalo, Inc., 27 AD3d 1153, 1154; see Brierley v
                                 -2-                           330
                                                         CA 13-01668

Great Lakes Motor Corp., 41 AD3d 1159, 1160). Plaintiff further
failed to raise an issue of fact whether the ice that caused the
accident existed prior to the storm (see Chapman v Pyramid Co. of
Buffalo, 63 AD3d 1623, 1624; Martin v Wagner, 30 AD3d 733, 735).

     In view of our decision, we do not address defendant’s contention
concerning plaintiff’s affidavit submitted in opposition to the
motion.




Entered:   March 21, 2014                      Frances E. Cafarell
                                               Clerk of the Court
