This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 56
Rodney Sherman,
            Appellant,
        v.
New York State Thruway Authority,
            Respondent.




          Norman M. Block, for appellant.
          Andrew Zajac, for respondent.
          New York City Transit Authority, amicus curiae.




MEMORANDUM:
          The order of the Appellate Division should be affirmed,
with costs.
          Claimant, a New York State Trooper, slipped and fell on
an icy sidewalk outside the trooper barracks in Newburgh.   The
sidewalk is located on property owned and maintained by defendant

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New York State Thruway Authority.   Claimant commenced this
personal injury action against the Authority, alleging that it
negligently failed to maintain the sidewalk by failing to remove
ice and/or placing salt after a winter storm.   Following
discovery, both parties moved for summary judgment.   As relevant
here, the Authority argued that it was entitled to judgment as a
matter of law under the "storm in progress" doctrine.   The Court
of Claims denied the parties' motions, finding questions of fact
as to whether a storm was in progress at the time of claimant's
fall.   The Appellate Division reversed and granted the Authority
summary judgment (120 AD3d 792 [2d Dept 2014]).   We granted
claimant leave to appeal and now affirm.
           Although a landowner owes a duty of care to keep his or
her property in a reasonably safe condition, he "will not be held
liable in negligence for a plaintiff's injuries sustained as the
result of an icy condition occurring during an ongoing storm or
for a reasonable time thereafter" (Solazzo v New York City Tr.
Auth., 6 NY3d 734, 735 [2005]).   The Authority established prima
facie that it was entitled to judgment as a matter of law by
submitting uncontroverted evidence that a storm was ongoing at
the time of claimant's fall.   Claimant admitted at his deposition
that "an ice storm" had taken place the night before the
accident, and an "intermittent wintry mix" of snow, sleet and
rain persisted the next morning until 6:50 a.m., when claimant
arrived at the trooper barracks for work.   Claimant testified,


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and a certified weather report confirmed, that it was still
raining at 8:15 a.m. when he walked to his vehicle and slipped on
a patch of ice.   The undisputed facts that precipitation was
falling at the time of claimant's accident and had done so for a
substantial time prior thereto, while temperatures remained near
freezing, established that the storm was still in progress and
that the Authority's duty to abate the icy condition had not yet
arisen.    In opposition, claimant failed to raise a triable issue
of fact.
           Therefore, the Appellate Division properly granted the
Authority's motion for summary judgment dismissing the complaint.




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Sherman v New York State Thruway Authority
No. 56




RIVERA, J.(dissenting):
            This appeal involves the application on summary
judgment of the storm-in-progress doctrine to claimant Rodney
Sherman's personal injury action against the New York State
Thruway Authority (Authority), arising from his slip and fall on
an icy patch of a sidewalk under the care and responsibility of
the Authority.   On the record before us, triable issues of
material fact exist as to whether the storm in question had
ended, and if so whether a reasonable period of time had passed
to hold the Authority liable for negligence resulting in
claimant's injuries.   Therefore, the Appellate Division should be
reversed, and I dissent from the majority's determination to the
contrary.
            "Since [summary judgment] deprives a litigant of [the
party's] day in court it is considered a drastic remedy which
should only be employed when there is no doubt as to the absence
of triable issues" (Andre v Pomeroy, 35 NY2d 361, 364 [1974]).
"The proponent of a summary judgment motion must make a prima
facie showing of entitlement to judgment as a matter of law,
tendering sufficient evidence to demonstrate the absence of any


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material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320,
324 [1986]).   Thus, "[a] party moving for summary judgment must
demonstrate that 'the cause of action or defense shall be
established sufficiently to warrant the court as a matter of law
in directing judgment' in the moving party's favor" (Jacobsen v
New York City Health and Hosps. Corp., 22 NY3d 824, 833 [2014],
quoting CPLR 3212 [b]).    "This burden is a heavy one and on a
motion for summary judgment, facts must be viewed in the light
most favorable to the non-moving party" (William J. Jenack Estate
Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475
[2013] [internal quotation marks omitted]), "and every available
inference must be drawn in the [non-moving party's] favor"
(People v Torres, 26 NY3d 742, 763 [2016]).    If the moving party
makes out a prima facie showing, "the burden then shifts to the
non-moving party to establish the existence of material issues of
fact which require a trial of the action"    (Jacobsen, 22 NY3d at
833 [internal quotation marks omitted]).
          In support of its summary judgment motion, the
Authority relied on the storm-in-progress doctrine, which
provides that "[a] property owner will not be held liable in
negligence for a plaintiff's injuries sustained as the result of
an icy condition occurring during an ongoing storm or for a
reasonable time thereafter" (Solazzo v New York City Tr. Auth, 6
NY3d 734, 735 [2005]).    "The reasonableness of the time within
which [an owner] must respond to its duty to clear the sidewalks


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is measured from the time that the storm comes to an end
since...'responsibility for ice conditions arises, at the most,
only after the lapse of a reasonable time for taking protective
measures and never while a storm is still in progress'"
(Valentine v City of New York, 86 AD2d 381, 384 [1st Dept 1982],
affd 57 NY2d 932 [1982], quoting Valentine v State of New York,
197 Misc 972, 975 [Ct Claim 1950], affd 277 AD 1069 [3d Dept
1950], lv denied 277 AD 1080 [1950]).    The doctrine reflects
practical concerns related to the challenges and dangers of
maintaining property in reasonably safe conditions during
inclement weather (see Powell v MLG Hillside Assoc., L.P., 290
AD2d 345, 345 [1st Dept 2002]).   It "allow[s] workers a
reasonable period of time to clean the walkways," and "is
designed to relieve the worker[s] of any obligation to shovel
snow while continuing precipitation or high winds are simply
re-covering the walkways as fast as they are cleaned, thus
rendering the effort fruitless" (id.).    Thus, when weather
conditions are no longer storm like, or where a storm has turned
to rainy conditions that neither imperil workers nor frustrate
clean up efforts, the temporary suspension of a property owner's
duty of care is no longer justified.
          In accordance with these legal principles, in order for
the Authority to establish its storm-in-progress defense and thus
carry its prima facie burden on summary judgment, it had to
proffer admissible evidence that at the time of Sherman's


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accident there was an ongoing storm, or that the storm had ceased
and a reasonable amount of time had not yet elapsed before the
Authority was required to ameliorate the icy sidewalk conditions.
In support of the motion, the Authority submitted deposition
testimony from four individuals -- Sherman, an Authority
Maintenance Supervisor, and two other Authority employees -- as
well as a certified weather report from the National Climatic
Data Center for Stewart International Airport, which is located
five miles from where the accident occurred.
            According to Sherman's deposition testimony, on the
date of his injury he was working as a state trooper at Troop T
barracks in Newburgh, New York.    In describing the weather
conditions proceeding the accident, Sherman stated there was an
ice storm in the area the night before, that during his commute
to work the next morning the weather consisted of a "wintry mix"
of sleet and rain, and when he arrived at the barracks at 6:50
a.m. the weather was an "intermittent wintry mix."    He remained
indoors until 8:15 a.m. when he left to respond to a traffic
accident.    When he stepped outside the barracks he noted that it
"had warmed up considerably" and there was a light rain falling.
He walked about eight feet before he slipped and fell on an icy
area of the sidewalk.
            The Supervisor testified that the Authority was
responsible for maintaining the sidewalks around the barracks,
but during a storm they were a third priority, after the highways


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and service areas.   Two construction equipment operators
responsible for maintaining the roads during a storm, who worked
the respective 3 p.m. to 11 p.m. and 11 p.m. to 7 a.m. shifts the
night before and into the day of the accident, both recorded in
their logs and testified at their depositions that it was
raining.   The climatological report for the Airport, located five
miles away from the barracks, indicated rain and mist and above
freezing temperatures from 10:45 p.m. the night before and for
hours following on the day of the accident.
           In opposition to the Authority's motion, Sherman relied
on his testimony and the evidence submitted by the Authority, as
well as various daily log books from other members of the
Authority's salt and sand crew.   The log books for the two
construction equipment operators indicate that from 11 p.m. the
night before the accident until 6 a.m. the day of, there was
light to medium rain.   Sherman argued that this evidence
established the storm had ended hours before the accident, and no
later than 5:45 a.m.
           Applying the storm-in-progress rule, and giving Sherman
every favorable inference, as the Court must on summary judgment
(see Torres, 26 NY3d at 763), there are triable questions of
material fact as to the actual weather conditions before and at
the moment Sherman fell.   Specifically, there are questions of
fact as to when the storm ended, if at all, and if it did end,
how much time had elapsed before Sherman slipped and fell on the


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icy sidewalk.    The Authority claimed that the original ice storm
was ongoing because at a minimum, winter precipitation continued
during defendant's drive to work, and rain was falling during a
period of near-freezing temperatures.    Sherman, on the other
hand, argued that the storm was over when he sustained his
injuries because by that time all road work had been completed,
which would not be the case if the storm was ongoing, and at the
time of his injury the weather had warmed up, producing light,
and not freezing, rain.
            We have never held that above-freezing rain alone
constitutes a type of storm-in-progress that would relieve a
property owner from taking any action to clear or maintain the
property.    Thus, if an ice storm has changed, due to warming
weather, into mere rain, then the storm has ended.    Applying this
test the Authority's summary judgment submissions do not
establish whether the storm ended or, if so, whether insufficient
time had elapsed to require the Authority to take protective
measures.    Sherman testified there was a wintry mix falling the
night before and until 6:50 a.m. the day of the accident, and
that at 8:15 a.m., when he exited the barracks, moments before
his fall, the temperature was considerably warmer and it was
raining.    The Authority's employees, log books, and the
climatological report all corroborate his testimony that at least
the hour before and at the time of the accident, the temperature
was above-freezing and it was raining.    The Authority's crew


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workers' depositions and log books indicated light to moderate
rain throughout the night and the morning of the accident.
Therefore, there remain triable questions of material fact as to
whether the storm ended and if so when, requiring a trier of fact
to resolve the nature of the precipitation both preceding and at
the time of Sherman's fall, and whether the rain conditions were
storm-like.   Furthermore, factual questions remain as to whether
the precipitation was a post-storm event preventing the Authority
from taking protective measures to avoid accidents from the
accumulated icy conditions caused by the storm.   In other words,
if the storm conditions had passed, such that there was only
above-freezing rain, then the justification for the storm-in-
progress rule no longer holds water.
          Contrary to the majority's conclusory statement that
"undisputed facts" establish a storm-in-progress at the time
Sherman fell (maj opn at 3), the summary judgment submissions
demonstrate that the weather conditions are highly contested.
Although the parties agree there was an ice storm the night
before the accident, that is where their agreement ends.   Given
that the summary judgment proof in the form of Sherman's
testimony, the Authority's employees' statements and documentary
evidence, and the climatological report, all indicate that above-
freezing rain was falling in the hours before and at the time of
the accident, material factual questions exist as to the nature
of the weather conditions and the applicability of the storm-in-


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progress doctrine.    To the extent the majority infers the storm-
like nature of the precipitation, such inference favors the
Authority as the moving party.     However, on a summary judgment
motion this Court must "view the facts in the light most
favorable" to Sherman as the non-moving party, and "even if the
jury at a trial could, or likely would decline to draw inferences
favorable to [Sherman]," the Court "must indulge all available
inferences" in his favor (Torres, 26 NY3d at 763).        Those
inferences, at a minimum, lend support to Sherman's argument that
at the time of his accident the ice storm had passed, evidenced
by the existence of non-freezing rain, requiring the Authority to
take appropriate safety measures to address the accumulated icy
conditions.
*   *   *     *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed, with costs, in a memorandum. Chief Judge DiFiore
and Judges Pigott, Stein and Garcia concur. Judge Rivera
dissents in an opinion in which Judges Abdus-Salaam and Fahey
concur.

Decided May 5, 2016




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