3. Notice of Motion, dated October 24, 2003, filed October 27, 2003;
4. Affidavit of Richard B. Friedfertig, sworn to October 24, 2003, in support
of the motion, with attached exhibits;
5. Affirmation of Robert E. Scott, Esq., dated January 14, 2004, in opposition
to the motion, with attached exhibit.
On consideration the Court will deny Defendant's motion.
Summary judgment is a drastic remedy, one which should not be granted where
there is any doubt as to the existence of a triable issue of fact (Rotuba
Extruders, Inc. v Ceppos, 46 NY2d 223, 231; Sillman v Twentieth
Century-Fox Film Corp., 3 NY2d 395, 404 ), with issue-finding rather
than issue-determination the focus of the Court in reviewing the submissions
(Sillman, 3NY2d at 404). To obtain such disfavored relief a movant must
establish his cause of action or defense "sufficiently to warrant the court as a
matter of law in directing judgment" in his favor (CPLR 3212 [b]), and must do
so by tender of evidentiary proof in admissible form (Friends of Animals v
Associated Fur Mfrs., 46 NY2d 1065, 1067 ).
Ms. Smith has alleged that she sustained injury on March 7, 1996, when she
tripped and fell from an obscured curb edge in a parking lot at the North Campus
of the State University of New York at Buffalo. Claimants contend inter alia
that the University was negligent in failing to keep the sidewalk, walkways
and parking lot free from snow and ice. Defendant now seeks dismissal of the
Claim on two grounds: that the snow accumulation in question was the result of a
"storm in progress," such that no liability could attach to the property owner;
and, that any hazard presented was open and obvious.
Under the "storm in progress" rule, a property owner will not be held liable
for accidents that occur as a result of the accumulation of snow or ice on its
premises until an adequate amount of time has passed following the cessation of
the storm to allow the owner an opportunity to notice and remedy the hazards
caused by the storm (Cerra v Perk Dev., 197 AD2d 851 ; see also
Bertram v SV Danco Corp., 300 AD2d 1108, 1109 ). Here, Defendant
submitted evidence that it was snowing at the time of Ms. Smith's fall, and that
slightly more than one inch of snow fell that day. However, that same Local
Climatological Data Report indicates that 12.3 inches of snow had fallen in the
6 days prior to this incident. Since Claimant has testified that she could not
distinguish the sidewalk from the parking lot because "[a]t the area of the
curb, it was just one carpet. It was one surface." (see Defendant's
Exhibit E, p 69), a triable issue of fact exists as to whether the curb area
became hidden by the storm in progress, or by a prior accumulation of snow and
ice that would not be subject to the "storm in progress" rule (see
Bertram, 300 AD2d at 1109).
Defendant also has urged dismissal on the ground that any hazard resulting from
the snow accumulation was open and obvious. Again, however, Ms. Smith has
disputed whether the curb condition was readily observable. Moreover, in the
Fourth Department the determination that a condition was open and obvious is not
generally dispositive of the issue of landowner liability, since a property
owner would continue to owe a duty to maintain its premises in a reasonably safe
manner (see Morgan v Genrich, 239 AD2d 919, 920  [injured party's
knowledge of icy condition upon which he slipped did not negate owner's duty to
Based upon the foregoing, Defendant's motion is denied.