                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 14, 2015                      519322
________________________________

ROBERT E. HARVEY JR. et al.,
                    Appellants,
      v
                                            MEMORANDUM AND ORDER
LAZ PARKING LTD, LLC, et al.,
                    Respondents.
________________________________


Calendar Date:   March 24, 2015

Before:   Peters, P.J., Egan Jr., Rose and Lynch, JJ.

                             __________


      Ziff Law Firm, LLP, Elmira (Christina Bruner Sonsire of
counsel), for appellants.

      Goldberg Segalla, Albany (Mark P. Donohue of counsel), for
LAZ Parking Ltd, LLC, respondent.

      Hiscock & Barclay, LLP, Elmira (Justin L. Salkin of
counsel), for City of Elmira, respondent.

                             __________


Lynch, J.

      Appeal from an order of the Supreme Court (O'Shea, J.),
entered April 2, 2014 in Chemung County, which, among other
things, granted defendants' motions for summary judgment
dismissing the complaint.

      Plaintiff Robert E. Harvey Jr. (hereinafter plaintiff) and
his spouse, derivatively, commenced this action seeking damages
for injuries plaintiff sustained on February 2, 2008 at
approximately 10:30 p.m. when he slipped and fell on ice after
leaving a hockey game at the First Arena in the City of Elmira,
Chemung County. The area where plaintiff fell, a former city
                              -2-                519322

street now closed to traffic and used as a pedestrian area, is
the property of defendant City of Elmira. While no party claimed
to be responsible for removing snow and ice from the pedestrian
area, defendant LAZ Parking Ltd, LLC cleared an adjacent sidewalk
pursuant to an agreement with the City. It is not clear from the
record exactly where plaintiff fell, but he claimed that when he
left the hockey game, there was "misty drizzle" and that he
slipped on "ice" while crossing the pedestrian area to reach one
of the adjacent sidewalks. Defendants moved for summary judgment
dismissing the complaint on various grounds. Supreme Court
granted their motions on the ground that the incident occurred
during a storm in progress, prompting this appeal.

      A landowner has no duty to remedy a dangerous condition
resulting from a storm while the storm is in progress and has a
reasonable amount of time after the storm has ended to take
corrective action (see O'Neil v Ric Warrensburg Assoc., LLC, 90
AD3d 1126, 1126 [2011]; Mosquera v Orin, 48 AD3d 935, 936
[2008]). Here, defendants relied on plaintiff's sworn testimony
that he did not see any ice before he fell and that there was
precipitation – "kind of like a freezing rain" – during and after
the hockey game. Plaintiff described the ground as slushy and
wet after the game, but did not notice these conditions walking
into the arena before the game. Relying, in part, on plaintiff's
characterizations of the conditions, as well as weather data and
climatological records from the day before and the day of
plaintiff's fall, defendants' expert, Howard Altschule, a
meteorologist, opined that plaintiff fell on ice that was formed
between approximately 8:53 p.m. and 9:53 p.m. on February 2,
2008. In our view, Supreme Court properly found that defendants'
submissions were sufficient to demonstrate that the ice was
formed by the ongoing weather conditions, that is, the
temperature fluctuations and drizzle during the evening on
February 2, 2008 (see Micheler v Gush, 256 AD2d 1051, 1052
[1998]).

      As defendants demonstrated that the storm in progress
doctrine applied, Supreme Court properly shifted the burden to
plaintiffs to produce "admissible evidence that the ice that
caused plaintiff's slip and fall existed prior to the storm in
progress, and that defendant[s] had actual or constructive notice
                              -3-                519322

of the hazard" (O'Neil v Ric Warrensburg Assoc., LLC, 90 AD3d at
1126-1127 [internal quotation marks and citation omitted]; see
Convertini v Stewart's Ice Cream Co., 295 AD2d 782, 783 [2002]).
To this end, plaintiffs relied on affidavits by George Wright, a
meteorologist, and John A. Allin, a professional snow and ice
management specialist. Wright opined that plaintiff fell on ice
resulting from precipitation that fell no later than 1:27 a.m. on
February 2, 2008, some 19 hours before the accident. While
agreeing with Altschule that the temperature dipped below
freezing between 8:53 p.m. and 9:53 p.m. on February 2, 2008,
Wright rejected Altschule's claim that the "freezing drizzle"
that evening produced the ice. In doing so, however, he relied
in part upon photographs taken several hours after the fall that
were not received into evidence. Allin opined that defendants'
practice of removing snow and ice from the sidewalks adjacent to
the walkway without clearing the walkway "triggered the
forseeable development of black ice and/or exacerbated the
dangerous build-up of ice on the walkway from the sidewalk's ice
and snow run-off as soon as the temperature shifted." Allin's
opinion was premised on his belief that the snow and ice removed
from the sidewalks were deposited onto the walkway.

      In our view, plaintiffs' submissions failed to raise a
question of fact as to whether plaintiff fell on preexisting ice.
The claim that defendants deposited piles of snow in the walkway
or that piles of snow existed in the walkway on the day of
plaintiff's fall is not supported by the record and neither
Altschule nor Wright testified that there was any significant
snowfall in the days preceding plaintiff's fall. While there was
an ice storm warning and about 0.90 inches of precipitation on
February 1, 2008, the record shows that the temperature remained
above freezing for approximately 33 hours before dropping below
freezing at 8:53 p.m. on February 2, 2008. To the extent that
plaintiffs' experts relied on the photographs taken hours after
the accident, we discern no error in Supreme Court's
determination not to consider the photographs that were presented
with an untimely surreply affidavit (see CPLR 2214 [c]; Wilcox v
Newark Val. Cent. Sch. Dist., 107 AD3d 1127, 1130 [2013]).
Moreover, since there was no testimony that the photographs
depicted the conditions at the time of plaintiff's fall, they
were not competent evidence (see Lustenring v 98-100 Realty, 1
                              -4-                  519322

AD3d 574, 577-578 [2003], lv dismissed and denied 2 NY3d 791
[2004]). This is particularly so since the experts agreed that
the temperature dipped below freezing again shortly after the
accident. We find that plaintiffs' claims are too speculative to
allow an inference that plaintiff fell on preexisting ice created
by defendants' snow removal efforts, or that defendants had
actual or constructive notice of any such hazard (see Granato v
Bella Vista Group Assoc., 239 AD2d 781, 783 [1997]; Jornov v Ace
Suzuki Sales & Serv., 232 AD2d 855, 857 [1996]).

      Finally, we do not believe that plaintiffs' appendix on
this appeal was so deficient as to warrant the imposition of
sanctions pursuant to CPLR 5528. Given the foregoing, the
remaining arguments are academic.

     Peters, P.J., Egan Jr. and Rose, JJ., concur.



     ORDERED that the order is affirmed, with one bill of costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
