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

622
CA 14-02039
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


MARY WITHERSPOON, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TOPS MARKETS, LLC, DEFENDANT-RESPONDENT.


DAVID P. FELDMAN, BUFFALO, FOR PLAINTIFF-APPELLANT.

DIXON & HAMILTON, LLP, GETZVILLE (DENNIS HAMILTON OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), entered June 10, 2014. The order
granted the motion of defendant for summary judgment dismissing the
complaint.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she slipped and fell on snow or ice in
defendant’s parking lot. Defendant moved for summary judgment
dismissing the complaint, contending that it had no duty to correct
the hazardous condition because there was a storm in progress at the
time plaintiff fell, and Supreme Court granted the motion. We affirm.

     Defendant met its initial burden by establishing that a storm was
in progress at the time of the accident and, thus, that it “had no
duty to remove the snow [or] ice until a reasonable time ha[d] elapsed
after cessation of the storm” (Glover v Botsford, 109 AD3d 1182, 1183
[internal quotation marks omitted]; see Gilbert v Tonawanda City Sch.
Dist., 124 AD3d 1326, 1327). The accident occurred shortly after
10:30 a.m. on January 13, 2012, when plaintiff exited defendant’s
supermarket. Two supermarket employees testified at their depositions
that there was a storm occurring both before and at the time plaintiff
fell, and that the storm produced wintry, snowy, and blustery
conditions (see Gilbert, 124 AD3d at 1327). Even plaintiff
acknowledged in her deposition testimony that it was snowing on the
morning in question as she drove to the supermarket, as well as when
she entered and exited the store (see Glover, 109 AD3d at 1183). The
above deposition testimony was corroborated by a surveillance video
that depicted a steady accumulation of snow in defendant’s parking lot
before the accident and repeated passes by a snowplow attempting to
clear portions of the parking lot.
                                 -2-                           622
                                                         CA 14-02039

     Contrary to plaintiff’s contention, we conclude that she failed
to raise an issue of fact whether there was a storm in progress when
the accident occurred (see Mann v Wegmans Food Mkts., Inc., 115 AD3d
1249, 1250; Glover, 109 AD3d at 1183-1184). Moreover, “[e]ven if
there was a lull or break in the storm around the time of plaintiff’s
accident, this does not establish that defendant had a reasonable time
after the cessation of the storm to correct hazardous snow or
ice-related conditions” (Mann, 115 AD3d at 1250 [internal quotation
marks omitted]). Plaintiff further “failed to raise a triable issue
of fact whether the accident was caused by a slippery condition . . .
that existed prior to the storm, as opposed to precipitation from the
storm in progress, and that . . . defendant had actual or constructive
notice of the preexisting condition” (Quill v Churchville-Chili Cent.
Sch. Dist., 114 AD3d 1211, 1212 [internal quotation marks omitted]).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
