                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 25, 2016                   521542
________________________________

DANIEL POTTER et al.,
                    Respondents,
      v                                     MEMORANDUM AND ORDER

YMCA OF KINGSTON & ULSTER
   COUNTY,
                    Appellant.
________________________________


Calendar Date:   January 11, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

                             __________


      Roemer Wallens Gold & Mineaux, LLP, Albany (Matthew J.
Kelly of counsel), for appellant.

      Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel),
for respondents.

                             __________


McCarthy, J.P.

      Appeal from an order of the Supreme Court (Work, J.),
entered May 5, 2015 in Ulster County, which denied defendant's
motion for summary judgment dismissing the complaint.

      At approximately 5:20 a.m. on February 11, 2013, plaintiff
Daniel Potter slipped on ice and fell as he walked across
defendant's parking lot. Potter and his spouse, derivatively,
commenced this negligence action against defendant seeking
damages based on Potter's injuries. Defendant moved for summary
judgment dismissing the complaint. Supreme Court denied
defendant's motion, and defendant now appeals.
                              -2-                521542

      Defendant failed to establish as a matter of law that the
precipitation from a storm in progress was the sole proximate
cause of Potter's fall. As is relevant to this inquiry, a
defendant is permitted a reasonable period of time after a storm
ceases to remedy related dangerous snow and/or ice conditions
(see O'Neil v Ric Warrensburg Assoc., LLC, 90 AD3d 1126, 1126
[2011]; Mosquera v Orin, 48 AD3d 935, 936 [2008]). When a
defendant produces evidence that a plaintiff fell on snow and/or
ice during or immediately after such a storm, it is incumbent
upon a plaintiff, in order to avoid summary judgment, to produce
evidence that raises an issue of fact as to whether dangerous
snow and/or ice that contributed to the accident existed prior to
that storm so as to provide actual or constructive notice to the
defendant (see O'Neil v Ric Warrensburg Assoc., LLC, 90 AD3d at
1126; Pacelli v Pinsley, 267 AD2d 706, 707 [1999]).

      Defendant submitted proof in the form of a sworn statement
from a meteorologist that light snow and/or freezing rain began
falling at 4:54 a.m. on the day of the accident and that such
weather left less than one tenth of an inch of new precipitation
on the ground. Assuming that this was sufficient to establish
that Potter fell during or immediately after a storm, plaintiffs
raised issues of fact as to causation. Plaintiffs submitted
certified records from the National Climatic Data Center that
established that, two days prior to the accident, .94 inches of
rain and 8.1 inches of snow had fallen. Further, Potter averred
that ice on defendant's parking lot had built up over a
significant period of time during the winter and prior to his
fall. In addition, defendant's chief executive officer and
president explained that defendant's automatic snow and ice
removal service was "purely a plowing contract." She further
explained that, for sand or salt to be applied, defendant would
have had to make a specific request, which would have resulted in
an additional services bill for defendant's records. She
explained that her records did not indicate that any sanding or
salting services had been provided in February. Considering the
significant precipitation two days prior to the alleged storm in
progress, Potter's observations that ice had been accumulating in
the parking lot prior to the morning of the accident and the
concession that defendant's only snow and ice maintenance during
February would have been plowing, material issues of fact
                              -3-                  521542

preclude summary judgment (see O'Neil v Ric Warrensburg Assoc.,
LLC, 90 AD3d at 1127; Spicer v Estate of Ondek, 60 AD3d 1234,
1235 [2009]).

      Defendant also failed to establish as a matter of law that
it was not negligent in its lighting of the parking lot or that
such negligence did not contribute to Potter's fall. Defendant's
submissions contained both contradictory proof as to whether
defendant's parking lot lights were functioning at the time of
the accident and the deposition testimony from Potter's spouse,
who explained that, at the time of the accident, it was too dark
to see the ice on the surface of the parking lot. Such evidence
reveals material questions of fact requiring a trial (see Murphy
v Hometown Real Estate, 132 AD3d 1126, 1127-1128 [2015]; Macri v
Smith, 12 AD3d 896, 897 [2004]). Defendant's remaining
contentions are also without merit.

     Egan Jr., Lynch and Devine, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
