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

865
CA 12-00529
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


ASHLEY FERGUSON, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ROCHESTER CITY SCHOOL DISTRICT,
DEFENDANT-RESPONDENT.


ELLIOTT, STERN & CALABRESE, LLP, ROCHESTER (DAVID S. STERN OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

CHARLES G. JOHNSON, ROCHESTER (MICHAEL E. DAVIS OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (John
J. Ark, J.), entered June 13, 2011 in a personal injury action. The
judgment, upon a jury verdict in favor of defendant, awarded costs.

     It is hereby ORDERED that the judgment so appealed from is
reversed on the law without costs, the posttrial motion is granted,
the verdict is set aside, the complaint is reinstated and a new trial
is granted.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she slipped and fell on a snow- and ice-
covered walkway on school premises owned by defendant. After trial,
the jury returned a verdict finding that defendant was not negligent.
We agree with plaintiff that Supreme Court erred in denying her
posttrial motion to set aside the verdict and for a new trial inasmuch
as the verdict is contrary to the weight of the evidence (see CPLR
4404 [a]). Although plaintiff appeals from the order denying her
posttrial motion and not the subsequently-entered judgment, we
nevertheless exercise our discretion to treat the notice of appeal as
valid and deem the appeal as taken from the judgment (see CPLR 5520
[c]; Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988, 988).

     With respect to the merits, we conclude that “the evidence so
preponderate[d] in favor of the [plaintiff] that [the verdict] could
not have been reached on any fair interpretation of the evidence”
(Lolik v Big V Supermarkets, 86 NY2d 744, 746 [internal quotation
marks omitted]; see Higgins v Armored Motor Serv. of Am., Inc., 13
AD3d 1087, 1088). It is well established that “[a] landowner must act
as a reasonable [person] in maintaining his [or her] property in a
reasonably safe condition in view of all the circumstances, including
the likelihood of injury to others, the seriousness of the injury, and
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                                                         CA 12-00529

the burden of avoiding the risk” (Basso v Miller, 40 NY2d 233, 241
[internal quotation marks omitted]; see Witherspoon v Columbia Univ.,
7 AD3d 702, 702-703). “Once a [landowner] has actual or constructive
notice of a dangerous condition, the [landowner] has a reasonable time
to undertake remedial actions that are reasonable and appropriate
under all of the circumstances” (Friedman v Gannett Satellite Info.
Network, 302 AD2d 491, 491-492; see Sartin v Amerada Hess Corp., 256
AD2d 857, 857).

     Here, as conceded by the dissent, it is undisputed that the
compacted snow and ice remaining on the walkway at the time of
plaintiff’s accident constituted a dangerous condition and that
defendant had actual notice of the dangerous condition. Indeed,
defendant’s head custodian in charge of snow removal repeatedly
testified that the walkway at issue, which was regularly used by
students and faculty entering and exiting the school, was “very icy”
on the morning of the accident. The accident occurred sometime
between 7:00 a.m. and 7:30 a.m., when classes began. The head
custodian and another custodial employee testified that, prior to that
time, they dragged snow from the walkway using the back blade of a
tractor and spread salt on the walkway using a snow blower with a salt
spreader attachment. Nevertheless, the walkway was still covered in
ice and snow and thus was slippery at the time of plaintiff’s fall.
The head custodian confirmed that, when he responded to the accident
site after learning of plaintiff’s fall, “ice covered the entire
[walkway]” and that he found plaintiff “laying on top of ice.”
Plaintiff similarly testified that the walkway was “covered with ice
and snow” and that she could not see the pavement. Plaintiff
described the ice as hard, thick and rough. Plaintiff’s mother, who
visited the school the day after the accident, described the surface
of the snow- and ice-covered walkway as “white and hard”. She
confirmed that it looked as though the snow had melted and had frozen
again, resulting in “hard ice.” Plaintiff’s mother took photographs
of the area where plaintiff fell, which depict compacted snow and ice
covering the majority of the walkway with spots of bare pavement
showing through and snow piles lining the walkway. Significantly, the
head custodian testified that the photographs did not accurately
depict the conditions that existed on the date of plaintiff’s accident
because the photographs showed “dry spots . . . where [he] believe[d]
the salt had penetrated,” and those dry spots had not been there when
plaintiff fell.

     We conclude that the trial evidence establishes that defendant’s
efforts to ameliorate the dangerous condition were not reasonable and
appropriate under the circumstances and thus that defendant was
negligent (see generally McGowan v State of New York, 79 AD3d 984,
985-987; Chase v OHM, LLC, 75 AD3d 1031, 1033). Notably, defendant
did not contend at trial, nor does it contend on appeal, that there
was a storm in progress or that it lacked sufficient time to remedy
the dangerous condition of the walkway before plaintiff fell (see
generally Salvanti v Sunset Indus. Park Assoc., 27 AD3d 546, 546;
Lyons v Cold Brook Cr. Realty Corp., 268 AD2d 659, 659). Rather,
defendant contends, in essence, that it fulfilled its duty by plowing
and salting on the morning of the accident, that it had no obligation
                                 -3-                           865
                                                         CA 12-00529

to remove any of the remaining snow or ice and that, in any event, it
was impossible to remove any of the remaining snow or ice. In support
of that position, the head custodian testified that defendant had no
written procedures or usual practice for removing ice because “that’s
just part of mother nature” and that the custodial employees “don’t
remove the ice, [they] just spread the salt.” He admitted that the
back blade of the tractor is not effective in removing accumulated ice
from the walkways and that defendant owned no other tools or machines
to be used for that purpose. Thus, where there is a thaw followed by
freezing temperatures resulting in hardened snow, defendant’s
employees simply drag snow from the walkways using the tractor’s back
blade and then “spread as much salt as possible to get better traction
on the surface of the sidewalks leading to and from the school.” With
respect to the date of the accident, the head custodian testified that
it was “very, very cold that morning” and that “even if [defendant]
did throw as much salt as possible [on the walkway], it just didn’t
penetrate the ice[,] . . . [i]t was only . . . good for traction”
(emphasis added).

     Defendant’s contentions that it was “impossible” to remedy the
dangerous condition of the walkway and that it took adequate measures
to remove the snow and ice were refuted by the undisputed testimony of
plaintiff’s expert meteorologist and the certified weather records
admitted in evidence. Both the meteorologist and the head custodian
testified that salt becomes ineffective at around 10 degrees. In the
two days prior to the date of the accident, however, area temperatures
ranged from a low of 22 degrees to a high of 39 degrees, which the
meteorologist testified were “well within the range for salting to be
effective in melting snow and ice”. The temperature at 7:00 a.m. on
the date of the accident was 25 degrees. Additionally, the evidence
at trial establishes that defendant allowed the snow and ice to build
up on the walkway over several days. Plaintiff’s meteorologist
testified that there was no sleet or rainfall in the area in the four
days preceding the date of the accident and that the only significant
snowfall occurred four days prior to the date of the accident, when
2.9 inches fell. That storm occurred on the Saturday before the
accident occurred, and the head custodian admitted that defendant
undertook no snow removal efforts over that weekend. Plaintiff
testified that the condition of the walkway on the Monday and Tuesday
prior to her fall was “pretty much the same” as on the Wednesday when
the accident occurred, i.e., that the walkway was covered in hard
packed snow and ice.

     Although defendant and the dissent cite several Third Department
cases for the proposition that the failure to remove all snow and ice
from a surface does not constitute negligence (see Cardinale v
Watervliet Hous. Auth., 302 AD2d 666, 666-667; Gentile v Rotterdam
Sq., 226 AD2d 973, 974), those cases involve situations where the
plaintiff fell on scattered patches or a thin layer of snow or ice
(see Cardinale, 302 AD2d at 666-667; Gentile, 226 AD2d at 974). Here,
by contrast, plaintiff fell on a snow- and ice-covered walkway under
circumstances in which defendant had ample opportunity to remedy the
dangerous condition, and defendant’s remedial efforts were plainly
insufficient to render the walkway reasonably safe (see generally
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                                                         CA 12-00529

McGowan, 79 AD3d at 986-987; Priester v City of New York, 276 AD2d
766, 766-767).

     The dissent contends that the meteorologist’s testimony is
inconsistent and, at times, directly contradicts the documentary
exhibits concerning a lake effect snow band in the greater Rochester
area on the morning of plaintiff’s accident. We disagree. The
meteorologist consistently testified that the Doppler imagery depicted
a band of light-to-moderate lake effect snow across the City of
Rochester beginning at approximately 5:30 a.m. the morning of the
accident; that the snow band lasted approximately 30 to 45 minutes and
resulted in a total snow accumulation of less than one inch in the
city; and that the heaviest snowfall from the snow band was focused
north of route 104, while the school is south of that roadway.
Inasmuch as the meteorologist was the only witness qualified to
interpret the documentary exhibits relating to the weather conditions
on the date of the accident, there is no basis to conclude that his
testimony contradicts those exhibits.

     Contrary to the further contention of the dissent, the evidence
establishes that the icy condition of the walkway did not result from
the weather conditions that occurred close in time to the accident.
The meteorologist testified without contradiction that the “fluffy,”
“dry” flurries of lake effect snow that fell in the Rochester area in
the hours leading up to the accident could not have caused the
compacted snow and ice depicted in plaintiff’s photographs and
testified to by plaintiff. Rather, the meteorologist testified that
the condition of the walkway appeared to have been created by the
melting and refreezing of earlier snow accumulation (see generally
Bojovic v Lydig Bejing Kitchen, Inc., 91 AD3d 517, 518; Sheldon v
Henderson & Johnson Co., Inc., 75 AD3d 1155, 1156; Ferrer v City of
New York, 49 AD3d 396, 397). Indeed, the head custodian testified
that, even though defendant removed snow from and applied salt to the
walkway shortly before plaintiff’s accident, “large areas of ice”
remained due to the accumulation of snow and ice in the days leading
up to plaintiff’s accident.

     Moreover, we note that none of defendant’s employees testified at
trial that it was snowing at the school on the morning of the
accident. Instead, the head custodian testified that he “believe[d]”
that there was “heavy rain” on the Monday and Tuesday prior to the
accident “because that’s the only way that the ice would have frozen
up that hard where we [were not] able to remove it, even spreading the
salt,” and that there was freezing rain on the morning of the
accident. Defendant’s other custodial employee testified that he
“thought” that it had rained the day or week prior to the accident.
The meteorologist unequivocally testified, however, that it did not
rain in the five days up to and including the day of the accident.
According to the meteorologist, there were no official reports of
rainfall and the area weather conditions were not conducive to rain.
Thus, the testimony of defendant’s employees regarding the rainy
conditions in the days preceding and on the day of the accident are
not credible as a matter of law (see Dorazio v Delbene, 37 AD3d 645,
646).
                                 -5-                           865
                                                         CA 12-00529

     In light of our determination, we do not address plaintiff’s
contention that reversal is required based on the court’s charge to
the jury concerning the applicable standard of care.

     We therefore reverse the judgment, grant the posttrial motion,
set aside the verdict, reinstate the complaint and grant a new trial
(see Canazzi v CSX Transp., Inc. [appeal No. 2], 61 AD3d 1347, 1348;
Pellegrino v Youll, 37 AD3d 1064, 1064).

     All concur except SCUDDER, P.J., and SMITH, J., who dissent and
vote to affirm in the following Memorandum: We respectfully disagree
with the majority and conclude that Supreme Court properly denied
plaintiff’s motion to set aside the verdict pursuant to CPLR 4404 (a).
It is well established that “[a] motion to set aside a jury verdict of
no cause of action should not be granted unless the preponderance of
the evidence in favor of the moving party is so great that the verdict
could not have been reached upon any fair interpretation of the
evidence” (Dannick v County of Onondaga, 191 AD2d 963, 964; see
generally Lolik v Big V Supermarkets, 86 NY2d 744, 746). Here, there
was no such preponderance of the evidence in favor of plaintiff.

     “In general, to impose liability for an injury proximately caused
by a dangerous condition created by weather . . ., a defendant must
either have created the dangerous condition, or had actual or
constructive notice of the condition, and a reasonable time to
undertake remedial actions . . . Once a defendant has actual or
constructive notice of a dangerous condition, the defendant has a
reasonable time to undertake remedial actions that are reasonable and
appropriate under all of the circumstances” (Friedman v Gannett
Satellite Info. Network, 302 AD2d 491, 491-492 [emphasis added]; see
Campanella v 1955 Corp., 300 AD2d 427, 427). Where, as here, the
dangerous condition consists of ice or snow, the “standard must be
applied with an awareness of the realities of the problems caused by
winter weather” (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681;
see Fusco v Stewart’s Ice Cream Co., 203 AD2d 667, 668; see generally
Williams v City of New York, 214 NY 259, 263-264). The reason for
such a rule is simple—“ ‘snow and ice conditions are unpredictable,
natural hazards against which no one can insure and which in their
nature cannot immediately be alleviated’ ” (Hilsman v Sarwil Assoc.,
L.P., 13 AD3d 692, 693). Furthermore, “ ‘[t]he danger arising from
the slipperiness of ice or snow . . . is one which is familiar to
everybody residing in our climate and which everyone is exposed to who
has occasion to traverse the streets of cities and villages in the
winter season’ ” (Williams, 214 NY at 264, quoting Harrington v City
of Buffalo, 121 NY 147, 150). Based on the realities of winter
weather, it has become well settled that “the mere failure to remove
all snow and ice from a sidewalk or parking lot does not constitute
negligence” (Gentile v Rotterdam Sq., 226 AD2d 973, 974; see Wheeler v
Grande’Vie Senior Living Community, 31 AD3d 992, 992-993; Cardinale v
Watervliet Hous. Auth., 302 AD2d 666, 667; Klein v Chase Manhattan
Bank, 290 AD2d 420, 420; see generally Spicehandler v City of New
York, 279 App Div 755, 756, affd 303 NY 946).
                                 -6-                           865
                                                         CA 12-00529

     Here, there is no dispute that the snow and ice remaining on the
walkway on which plaintiff fell constituted a dangerous condition and
that defendant had actual notice of that dangerous condition. “The
critical issue to be resolved is whether, under the prevailing
conditions, [defendant] fulfilled its duty to take appropriate
measures to keep the [walkway] safe . . . [I]t is a well-settled tort
principle that appropriate measures are those which under the
circumstances are reasonable . . . Ascertaining a standard of
reasonableness must be undertaken with an awareness of the realities .
. . caused by . . . weather” (Pappo v State of New York, 233 AD2d 379,
379-380 [internal quotation marks omitted]; see Goldman v State of New
York, 158 AD2d 845, 845, appeal dismissed 76 NY2d 764; see generally
Basso v Miller, 40 NY2d 233, 241-242). In determining whether
defendant’s actions were reasonable, the relevant inquiry is whether
“it would be unreasonable to expect that the ice and hard-packed snow
would have been completely eradicated” by defendant before plaintiff’s
accident (Delveccio v State of New York, 14 Misc 3d 1230[A], 2006 NY
Slip Op 52569[U], * 3).

     While plaintiff attempted to establish that there was no
significant snowfall occurring on the morning of her accident, the
majority ignores the fact that defendant presented proof demonstrating
that the icy walkway resulted from the weather conditions that
occurred close in time to the accident. Plaintiff presented testimony
from a meteorologist, who relied heavily on reports from the National
Oceanic Atmospheric Administration detailing the weather conditions at
the airport, which was located six miles southwest of defendant’s
property. The meteorologist, however, admitted that the weather in
other parts of Monroe County could be “significantly different” from
the weather at the airport. Plaintiff’s meteorologist had no specific
records concerning the snowfall at defendant’s property, and
documentary exhibits established that, on the morning of plaintiff’s
accident, there was a band of “lake effect snow” in an area north of
the airport that encompassed defendant’s property. Moreover, there
were several weather-related advisories issued that morning regarding
the snow band and alerting travelers of “moderate to heavy snow,”
“snow-covered, slippery roads,” and “hazardous” driving conditions.
The majority states that “the snow band was focused north of Route 104
while the school is south of that roadway,” but that ignores testimony
and documentary exhibits establishing that the heaviest area of
snowfall in that snow band “dropped below [Route 104]” into the area
one mile south of Route 104, which encompassed defendant’s property.
We thus conclude that the jury could have discounted plaintiff’s
evidence concerning the weather conditions inasmuch as the
meteorologist’s testimony was inherently inconsistent and was, at
times, directly contradicted by the documentary exhibits admitted in
evidence at the trial and the testimony of other witnesses
establishing that there was a significant snow band encompassing the
area of defendant’s property on the morning of plaintiff’s fall.

     We further conclude that defendant presented evidence
demonstrating that it fulfilled its duty to take appropriate measures
to keep the walkway safe. At the time of plaintiff’s accident,
defendant’s employees were using a “proven snow-removal plan . . .
                                 -7-                          865
                                                        CA 12-00529

implemented immediately following the inclement weather” (Goldman, 158
AD2d at 846; cf. McGowan v State of New York, 79 AD3d 984, 986). The
testimony at trial established that defendant had “a total of maybe
four or five” employees working on maintaining the walkways the
morning of plaintiff’s accident and that at least two of those
employees had been working on removing the snow and salting the
walkways for over an hour before plaintiff’s fall. Defendant’s
employees used a tractor and salt spreader but, even after “several
trips going back and forth,” ice remained on the walkways. Moreover,
defendant’s head custodian testified that it was not possible to
shovel and scrape all of the walkways down to the bare surface and
that, even though the area where plaintiff fell had been salted “quite
a bit,” it remained slippery due to the ice. Taking into
consideration the circumstances with which defendant was presented, we
conclude that defendant’s evidence, at the very least, raised a
question of fact whether defendant’s “remedial measures were adequate”
(Diaz v West 197th St. Realty Corp., 269 AD2d 327, 327; see Polgar v
Syracuse Univ., 255 AD2d 780, 780-781).

     Although plaintiff presented proof suggesting that defendant’s
efforts were inadequate, we cannot agree with the majority that the
jury verdict resolving those issues of fact in favor of defendant is
“palpably irrational or wrong” (Dannick, 191 AD2d at 964; see Stern v
Ofori-Okai, 246 AD2d 807, 808). In our view, the majority “carr[ies]
the rule of responsibility beyond all reasonable limits” (Mead v
Nassau Community Coll., 126 Misc 2d 823, 824; see generally Williams,
214 NY at 263-264).

     Inasmuch as we conclude that the court properly denied
plaintiff’s motion to set aside the verdict, we must address
plaintiff’s remaining contention that reversal is required based on
the court’s charge to the jury concerning the applicable standard of
care. In our view, plaintiff is precluded from challenging the
court’s charge. In its initial charge to the jury, the court
instructed the jury regarding the standard of care applicable to
municipalities. After plaintiff objected to the initial charge, the
court admitted its error and gave the jury a curative instruction.
The court first re-read the incorrect charge to the jury and then
juxtaposed it to the correct charge, which the court then read in
full. The court specifically informed the jury that the erroneous
charge related to municipalities and that it was not applicable to
defendant. Because plaintiff’s attorney thereafter expressed his
satisfaction with the curative instruction and neither moved for a
mistrial nor objected to the curative instruction, plaintiff is
“precluded from raising the effect of the curative instruction on
appeal” (Marek v DePoalo & Son Bldg. Masonry, 240 AD2d 1007, 1009; see
Dennis v Capital Dist. Transp. Auth., 274 AD2d 802, 803; see also
MacNamara-Carroll, Inc. v Delaney, 244 AD2d 817, 818-819, lv dismissed
in part and denied in part 91 NY2d 1001; but see Trump v Associated
Transp., Inc., 275 App Div 982, 982). “While this Court is empowered
to grant a new trial in the interest of justice where demonstrated
errors in a jury instruction are fundamental . . . here, we find no
evidence of error ‘so significant that the jury was prevented from
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                                                        CA 12-00529

fairly considering the issues at trial’ ” (Pyptiuk v Kramer, 295 AD2d
768, 771; see Antokol & Coffin v Myers, 30 AD3d 843, 847). The
curative instruction was “given in such explicit terms as to preclude
the inference that the jury might have been influenced by the
[initial] error” (Dennis, 274 AD2d at 803).




Entered:   October 5, 2012                     Frances E. Cafarell
                                               Clerk of the Court
