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

959
CA 13-00394
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


CAROLYN GLOVER, PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID M. BOTSFORD, INDIVIDUALLY AND DOING
BUSINESS AS ALICE’S MARKET, DEFENDANT-APPELLANT.


LAW OFFICES OF LAURIE G. OGDEN, ROCHESTER (DAVID F. BOWEN OF COUNSEL),
FOR DEFENDANT-APPELLANT.

CELLINO & BARNES, P.C., BUFFALO (BRETT MANSKE OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (William
P. Polito, J.), entered June 5, 2012. The order denied the motion of
defendant for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint is dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she slipped and fell on snow or ice on the
sidewalk in front of a store owned by defendant and operated by
defendant’s wife. Plaintiff alleges in the complaint, as amplified by
the bill of particulars, that defendant was negligent because he
either created the dangerous condition outside of his store or failed
to remedy the condition despite actual or constructive notice of it.
Following discovery, defendant moved for summary judgment dismissing
the complaint, contending, inter alia, that he had no duty to remove
the snow and ice from the sidewalk because there was a storm in
progress at the time of the accident. Supreme Court denied the
motion, determining that there was an issue of fact whether defendant
“properly maintained the dangerous, slippery condition by removing the
snow, but not salting or removing the ice, as alleged.” We
reverse.

     We conclude that the evidence submitted by defendant in support
of his motion, including an affidavit from his expert meteorologist
and the weather reports upon which that expert relied, established as
a matter of law that there was a storm in progress at the time of the
accident (see Sheldon v Henderson & Johnson Co., Inc., 75 AD3d 1155,
1156) and, thus, that defendant had no duty to remove the snow and ice
“until a reasonable time ha[d] elapsed after cessation of the storm”
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                                                         CA 13-00394

(Brierley v Great Lakes Motor Corp., 41 AD3d 1159, 1160 [internal
quotation marks omitted]). The accident occurred at approximately
8:45 a.m. on December 31, 2008, when plaintiff exited defendant’s
store in the City of Rochester. According to defendant’s expert
meteorologist, a snowstorm began in the Rochester area late in the
evening on December 30, 2008, and continued into the next day. At
4:15 a.m. on December 31, the National Weather Service issued a
“winter weather advisory” for the Rochester area and, two hours later,
the advisory was upgraded to a “winter storm warning.” More than 11
inches of snow accumulated in Rochester on December 31, which was a
record for that date, and most of that snow fell during the early
morning hours. Indeed, plaintiff acknowledged during her deposition
that it was snowing on the morning in question as she drove to the
store, and that testimony was consistent with the testimony of
defendant’s wife, among other witnesses.

     We further conclude that, in opposition to the motion, plaintiff
failed to raise an issue of fact whether there was a storm in progress
when the accident occurred (see generally Zuckerman v City of New
York, 49 NY2d 557, 562). In opposition to the motion, plaintiff
relied exclusively on an affirmation from her attorney who asserted,
based on an inaccurate reading of the weather reports submitted by
defendant, that it was not clear whether it had been snowing at the
time of the accident. Even assuming, arguendo, that it was not
snowing heavily at the time of the accident, we note that the “storm
in progress doctrine is not limited to situations where blizzard
conditions exist; it also applies in situations where there is some
type of less severe, yet still inclement, winter weather” (Camacho v
Garcia, 273 AD2d 835, 835 [internal quotation marks omitted]).
Moreover, plaintiff failed to establish that there was a “lull” or a
“break” in the storm such that defendant had a reasonable time in
which to abate the slippery conditions (see Baia v Allright Parking
Buffalo, Inc., 27 AD3d 1153, 1154; Camacho, 273 AD2d at 835).

     Plaintiff likewise failed to raise an issue of fact whether
defendant created the dangerous condition that caused her to slip and
fall or whether the snow removal efforts of defendant’s wife
exacerbated the dangerous condition created by the storm (see
Smilowitz v GCA Serv. Group, Inc., 101 AD3d 1101, 1102). Contrary to
plaintiff’s contentions, it is well settled that the “mere failure to
remove all snow and ice from a sidewalk . . . does not constitute
negligence and does not constitute creation of a hazard” (Wheeler v
Grand’Vie Senior Living Community, 31 AD3d 992, 992-993 [internal
quotation marks omitted]; see Wohlars v Town of Islip, 71 AD3d 1007,
1009; Cardinale v Watervliet Hous. Auth., 302 AD2d 666, 666-667), and
that the failure to salt or sand a sidewalk does not constitute an
affirmative act that would constitute an exacerbation of a dangerous
condition (see Ali v Village of Pleasantville, 95 AD3d 796, 797; Zima
v North Colonie Cent. Sch. Dist., 225 AD2d 993, 994). We therefore
conclude that the court erred in denying defendant’s motion for
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                                                      CA 13-00394

summary judgment dismissing the complaint.




Entered:   September 27, 2013                Frances E. Cafarell
                                             Clerk of the Court
