New York State Court of Claims

New York State Court of Claims

SMITH v. STATE OF NEW YORK, #2004-034-543, Claim No. 94139, Motion No. M-67572


Case Information

KIRSTEN SMITH and TYRONE SMITH The caption has been amended sua sponte to reflect the only proper Defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):
Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
By: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 25, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has moved for summary judgment dismissing the Claim pursuant to CPLR 3212. The following papers have been submitted to the Court for review:
1. Claim, verified May 30, 1996, filed June 3, 1996;
2. Answer, verified July 2, 1996, filed July 3, 1996;
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[1978]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), 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 [1979]).

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 [1993]; see also Bertram v SV Danco Corp., 300 AD2d 1108, 1109 [2002]). 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 [1997] [injured party's knowledge of icy condition upon which he slipped did not negate owner's duty to maintain premises]).

Based upon the foregoing, Defendant's motion is denied.

May 25, 2004
Buffalo, New York
Judge of the Court of Claims