SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

189 

CA 16-01267 

PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ. 

 

TERESA G. SMITH, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

UNITED REFINING COMPANY OF PENNSYLVANIA AND 

KWIK-FIL, INC., DEFENDANTS-APPELLANTS. 

 

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (MICHAEL J. WILLETT OF

COUNSEL), FOR DEFENDANTS-APPELLANTS. 

CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Monroe County (J.

Scott Odorisi, J.), entered July 17, 2015. The order denied in part

defendants’ motion for summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting the motion in part and

dismissing the complaint to the extent that it alleges that defendants

created the allegedly dangerous condition and as modified the order is

affirmed without costs. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries she allegedly sustained when she slipped and fell in the

parking lot of a gas station/convenience store owned and operated by

defendants. Supreme Court properly denied that part of defendants’

motion seeking summary judgment dismissing the complaint on the ground

that plaintiff’s alleged injury was not caused by a dangerous

condition on defendants’ property. Defendants cannot meet their

burden of establishing as a matter of law that the property was in a

reasonably safe condition based on the hearsay statement of a customer

that the area of plaintiff’s fall was shoveled and salted (see

generally Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331). 

Nor did plaintiff’s deposition testimony that “I just fell . . . ,

there was no precursor. I don’t remember slipping, I don’t remember

sliding” establish defendants’ entitlement to judgment on that issue,

inasmuch as the cause of her fall may be reasonably inferred from the

circumstances (see Lane v Texas Roadhouse Holdings, LLC, 96 AD3d 1364,

1364-1365; Nolan v Onondaga County, 61 AD3d 1431, 1432). Further, the

fact that plaintiff did not observe ice does not establish that her

fall was not caused by ice (see generally Gwitt v Denny’s Inc., 92

AD3d 1231, 1232). 
-2- 189 

CA 16-01267 

The court also properly denied that part of defendants’ motion

seeking summary judgment based upon the storm in progress doctrine. 

The affidavit of defendants’ expert meteorologist and the

climatological data on which he relied were insufficient to establish

the weather conditions at the time and location of the accident (see

Calix v New York City Tr. Auth., 14 AD3d 583, 584). Further, the

statements of witnesses at the gas station/convenience store did not

establish as a matter of law that plaintiff’s fall occurred during a

storm in progress (see Helms v Regal Cinemas, Inc., 49 AD3d 1287,

1288; Vickery v Estate of Brockman, 278 AD2d 913, 914).

We agree with defendants, however, that the court erred in

denying their motion with respect to plaintiff’s claim that

defendants’ snow removal efforts created or exacerbated the allegedly

dangerous condition. Under the storm in progress doctrine, a

defendant has no duty to remove the snow and the ice until a

reasonable time has elapsed after cessation of the storm (see Hanifan

v COR Dev. Co., LLC; 144 AD3d 1569, 1569). Where, as here, a

defendant has undertaken snow removal efforts during a storm, the

relevant inquiry becomes whether the defendant’s efforts either

created or exacerbated a hazardous condition (see Glover v Bolsford,

109 AD3d 1182, 1184). Plaintiff expressly conceded that she was not

relying on that theory of liability, and thus the court should have

granted defendants’ motion to the extent that it sought summary

judgment dismissing that claim (see generally Cullen v Naples, 31 NY2d

818, 820; Brown v George, 138 AD3d 466, 467). We therefore modify the

order accordingly. 

Entered: March 31, 2017 Frances E. Cafarell

Clerk of the Court