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

526
CA 16-01969
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND SCUDDER, JJ.


ANNIE MOSLEY, CLAIMANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-APPELLANT.
(CLAIM NO. 117444.)


ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF
COUNSEL), FOR DEFENDANT-APPELLANT.

BRENNA BOYCE, PLLC, ROCHESTER (WILLIAM P. SMITH, JR., OF COUNSEL), FOR
CLAIMANT-RESPONDENT.


     Appeal from a judgment of the Court of Claims (Renee Forgensi
Minarik, J.), entered February 10, 2016. The interlocutory judgment
apportioned liability 75% to defendant and 25% to claimant.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Claimant commenced this action seeking damages for
injuries she allegedly sustained when she slipped and fell on ice and
snow on a walkway leading to the entrance to the Orleans Correctional
Facility during visiting hours at that facility. After a nonjury
trial, the Court of Claims found defendant 75% liable for the
accident. Defendant appeals, and we affirm.

      “On appeal from a judgment entered after a nonjury trial, this
Court has the power ‘to set aside the trial court’s findings if they
are contrary to the weight of the evidence’ and to render the judgment
we deem warranted by the facts” (Black v State of New York [appeal No.
2], 125 AD3d 1523, 1524; see Baba-Ali v State of New York, 19 NY3d
627, 640; Matter of City of Syracuse Indus. Dev. Agency [Alterm,
Inc.], 20 AD3d 168, 170). We must give due deference, however, to the
court’s evaluation of the credibility of the witnesses and quality of
the proof (see Black, 125 AD3d at 1524-1525), and review the record in
the light most favorable to sustain the judgment (see City of Syracuse
Indus. Dev. Agency, 20 AD3d at 170). “Moreover, ‘[o]n a bench trial,
the decision of the fact-finding court should not be disturbed upon
appeal unless it is obvious that the court’s conclusions could not be
reached under any fair interpretation of the evidence’ ” (Black, 125
AD3d at 1525; see City of Syracuse Indus. Dev. Agency, 20 AD3d at
170).
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                                                         CA 16-01969

     “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
the burden of avoiding the risk’ ” (Ferguson v Rochester City Sch.
Dist., 99 AD3d 1184, 1185, quoting Basso v Miller, 40 NY2d 233, 241).
Nevertheless, “[a]lthough 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’ ” (Sherman v New York State Thruway Auth.,
27 NY3d 1019, 1020-1021, quoting Solazzo v New York City Tr. Auth., 6
NY3d 734, 735; see Hanifan v COR Dev. Co., LLC, 144 AD3d 1569, 1569;
Gilbert v Tonawanda City Sch. Dist., 124 AD3d 1326, 1327). “A
reasonable time is that period within which the [defendant] should
have taken notice of the icy condition and, in the exercise of
reasonable care, remedied it by clearing the sidewalk or otherwise
eliminating the danger” (Valentine v City of New York, 86 AD2d 381,
383, affd 57 NY2d 932).

     We conclude that a fair interpretation of the evidence supports
the court’s determination that defendant was 75% at fault for the
accident. There is no dispute that the snow and ice-covered walkway
constituted a dangerous condition, and we reject defendant’s
contention that the storm in progress doctrine absolves it of
liability. There was no evidence that it was snowing at the time of
or shortly before the accident. A watch commander log stated that it
was snowing approximately two hours before the accident, but there is
no evidence in the record of any snowfall after that time. The
evidence further established that, although the sidewalk was cleared
approximately two hours before the accident, there was snow and ice on
the sidewalk at the time of the accident. Contrary to defendant’s
contention, that evidence does not establish that it continued snowing
after the sidewalk was cleared inasmuch as it was just as likely that
the wind blew snow from the adjacent field onto the sidewalk.
Defendant failed to establish that the storm in progress doctrine
should apply under those circumstances because it failed to establish
that high winds accompanied the snowfall on the day of the accident
(cf. Gilbert, 124 AD3d at 1327; Powell v MLG Hillside Assoc., 290 AD2d
345, 345). Rather, the testimony established that wind would blow
snow onto the sidewalk “[a]ll the time” and was in the nature of a
recurring dangerous condition (see Anderson v Great E. Mall, L.P., 74
AD3d 1760, 1761-1762; see generally Frechette v State of New York, 129
AD3d 1409, 1410-1412).

     We reject defendant’s further contention that its snow removal
efforts on the morning of the accident were reasonable under the
circumstances. The evidence established that the sidewalk was
shoveled approximately two hours before the accident and again shortly
after the accident, and there is a fair interpretation of the evidence
that salt was not applied to the sidewalk until after the accident.
Given that defendant had knowledge of the time that visiting hours at
the facility were to begin that morning and that snow would often blow
onto the sidewalk from the adjacent field, we conclude that its
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                                                         CA 16-01969

“remedial efforts were plainly insufficient to render the walkway
reasonably safe” (Ferguson, 99 AD3d at 1187).




Entered:   May 5, 2017                          Frances E. Cafarell
                                                Clerk of the Court
