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Carty v. Merchant 99-111 Founders, LLC

LLOYD CARTY v. MERCHANT 99-111 FOUNDERS, LLC

(AC 46511)

Bright, C. J., and Clark and Westbrook, Js.

Syllabus

The plaintiff sought to recover damages from the defendant for personal

injuries he sustained in connection with an alleged slip and fall as a

result of untreated ice on premises owned, controlled, and maintained

by the defendant. The trial court granted the defendant’s motion for

summary judgment on the basis of the ongoing storm doctrine, and the

plaintiff appealed to this court. Held that the trial court properly granted

the defendant’s motion for summary judgment as it was undisputed that

there was an ongoing storm at the time the plaintiff fell, the defendant

satisfied its initial burden of establishing, prima facie, that it neither

created the snow and ice condition nor did it have actual or constructive

notice of the condition, and the plaintiff failed to satisfy his burden of

raising a genuine issue of material fact with respect to whether the icy

condition existed prior to the storm that was ongoing at the time of

his fall.

Argued April 25—officially released August 27, 2024

Procedural History

Action to recover damages for personal injuries sustained as a result of the defendant’s alleged negligence,

and for other relief, brought to the Superior Court in

the judicial district of Hartford, where the court, Rosen,

J., granted the defendant’s motion for summary judgment and rendered judgment thereon, from which the

plaintiff appealed to this court. Affirmed.

William B. Wynne, for the appellant (plaintiff).

Sarah B. Christie, with whom, on the brief, were

Colleen M. Garlick and Nicholas G. Dimopoulos, for

the appellee (defendant).

Opinion

CLARK, J. The plaintiff, Lloyd Carty, appeals from

the summary judgment rendered by the trial court in

favor of the defendant, Merchant 99-111 Founders,
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Carty v. Merchant 99-111 Founders, LLC

LLC,1 on the plaintiff’s one count complaint sounding

in premises liability arising out of his slip and fall. On

appeal, the plaintiff claims that the court improperly

rendered summary judgment in favor of the defendant

on the basis of the ongoing storm doctrine because (1)

the defendant never produced evidence to refute the

claim that the plaintiff fell on preexisting ice, and (2)

the plaintiff raised genuine issues of material fact as

to whether he fell on preexisting ice.2 We affirm the

judgment of the trial court.

We begin with the relevant procedural history of the

case. On January 7, 2021, the plaintiff commenced the

present action against the defendant in which he

asserted a claim sounding in premises liability arising

out of his alleged slip and fall. In support of his claim,

he alleged that, on March 10, 2019, he was walking on

the exterior of the premises known as 111 Founders

Plaza in East Hartford (plaza), which is owned by the

defendant. He was caused to slip and fall by reason of

a dangerous and defective condition, namely, an accumulation of snow and ice that had been present for

1 On November 12, 2021, the defendant filed a motion to serve a thirdparty complaint on Pinewood Landscaping, LLC (Pinewood). The defendant

alleged that BrightView Landscapes, LLC, was retained by the defendant

for snow removal services which, in turn, subcontracted with Pinewood,

that the defendant was a third-party beneficiary to the subcontract agreement, and that the agreement provided that Pinewood shall hold harmless

and indemnify the defendant and to include the defendant as an additional

insured on its liability policy to protect the defendant from claims such as

the present claim. On December 20, 2021, the court granted the defendant’s

motion to implead Pinewood. Pinewood was not a party to the motion for

summary judgment and is not participating in this appeal. 2 The plaintiff also claims that ‘‘the trial court improperly substituted its

judgment for that of the trier of fact and deprived the plaintiff-appellant of

his right to a jury trial.’’ At oral argument before this court, the plaintiff

conceded that this claim is better characterized as an argument that summary

judgment was improperly rendered. Therefore, although the plaintiff

attempted to brief this argument as a separate claim, we read the substance

of this claim as part of his more general argument that the court improperly

granted the defendant’s motion for summary judgment, which we address

in our analysis of the plaintiff’s other two claims.
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Carty v. Merchant 99-111 Founders, LLC

some time, which was not visible to pedestrians. As a

result of such fall, he suffered various injuries and

losses, and incurred (and may continue to incur)

expenses for medical care and attention, hospital care,

X-rays, physical therapy, and prescriptions, among

other things.

On March 25, 2021, the defendant answered the complaint and asserted a special defense alleging that the

plaintiff’s alleged injuries and damages were caused, in

whole or in part, by his own negligence.

On October 6, 2022, the defendant filed a motion

for summary judgment, accompanied by a supporting

memorandum of law. The defendant argued that it was

entitled to summary judgment because there was no

genuine issue of material fact that the plaintiff’s injuries

occurred during an ongoing snowstorm and that, consequently, pursuant to the ongoing storm doctrine, the

defendant did not owe any legal duty to the plaintiff at

the time of the incident and could not, as a matter of

law, be found negligent. As evidentiary support for its

motion, the defendant submitted transcript excerpts

from the August 26, 2022 deposition of the plaintiff and

a police report produced by the East Hartford Police

Department.

The plaintiff testified during his deposition that, on

March 10, 2019, at approximately 8 a.m., he had just

finished working his shift as a security guard at the

plaza and was on his way home after being relieved by

his coworker, Christian Burton. Before the plaintiff left,

Burton told him that Pitkin Street was slippery, and

that he had slipped on his way in to work. As the plaintiff

was leaving work, he observed that it was actively snowing and that the roads, parking lot, and sidewalks were

covered with snow. He also observed plow trucks and

a snow removal crew working, which he saw arrive at

the property at some point during his shift.
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Carty v. Merchant 99-111 Founders, LLC

The plaintiff testified that he walked on the sidewalk

in front of the plaza and headed across the parking lot

of the Hampton Inn & Suites toward the sidewalk along

Pitkin Street, which was the route he typically took to

access the Founders Bridge into downtown Hartford

on his route home. As the plaintiff was walking down

the sidewalk near the Hampton Inn & Suites, he slipped

on a patch of ice that was underneath the snow and

fell onto his knees and then onto his stomach. Once he

was able to get up, he tried to continue walking but

was only able to reach East River Drive before his pain

was too much to bear. He then sat down on a staircase

in a commuter parking lot and called 911. An ambulance

arrived first, followed by an East Hartford police officer,

who spoke to the plaintiff about his fall. The plaintiff

told the officer the general area where he fell, and the

officer located the area and took photographs, which

were included in the police report.

As to the weather conditions on the day of his fall,

the plaintiff testified that, when he arrived at work, he

did not recall it snowing and that the parking lot and

sidewalks were clear. According to the plaintiff, it

started snowing in the morning on the day of his fall

while he was working indoors. Although he could not

recall exactly when he first noticed that it had begun

to snow, it was snowing when he fell, and the roads,

parking lot, and sidewalks were covered with snow at

that time. With respect to the condition of the sidewalk

where he fell, the plaintiff could not recall whether

there had been any snow or ice on the sidewalk the

day before his fall. He also testified that he did not

know how or when the ice that caused him to slip and

fall had formed, how long that ice was there before he

fell, how thick the ice was, or whether it was formed

during the ongoing storm. To the best of the plaintiff’s

recollection, it had last snowed early during the week

leading up to his fall. The plaintiff also testified that,
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Carty v. Merchant 99-111 Founders, LLC

at some point during the week leading up to his fall,

he noticed water on the sidewalk in the general area

where he fell.

On January 18, 2023, the plaintiff filed a memorandum

of law in opposition to the defendant’s motion for summary judgment with appended exhibits, including additional transcript excerpts from his deposition and a

‘‘certified copy of the United States Department of Commerce meteorological records from the National Centers for Environmental Information in Asheville, North

Carolina’’ (weather records). In his memorandum of

law, the plaintiff argued that there existed a genuine

issue of material fact with respect to whether the ice

that caused him to fall had formed prior to the storm

that was ongoing when he fell. In support of that contention, he pointed to his deposition testimony that he

had seen water on the sidewalk in the area where he

fell during the week leading up to his fall and to the

weather records, which, according to him, proved that

there had been precipitation during the week leading

up to his fall and that the temperature had ranged above

and below freezing throughout that period.

The plaintiff also filed an affidavit in opposition to

the defendant’s motion for summary judgment on January 23, 2023. In his affidavit, the plaintiff stated, inter

alia, that he ‘‘was caused to fall by reason of ice that

was present underneath snow that had fallen overnight,’’ that ‘‘[i]n the week before [he] fell, [he saw] ice

on the sidewalk in the area where [he] fell, and that,

‘‘[d]uring [the week that he fell], [he saw] water on

the sidewalks and the temperatures had fallen below

freezing [at night].’’

At an April 17, 2023 hearing, the court, Rosen, J.,

heard oral argument on the defendant’s motion for summary judgment. On April 28, 2023, the court issued

a memorandum of decision in which it granted the
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Carty v. Merchant 99-111 Founders, LLC

defendant’s motion for summary judgment. In its memorandum of decision, the court stated: ‘‘In the present

case, it is undisputed that there was an ongoing storm

when the plaintiff fell. The plaintiff testified at his deposition that it was snowing when the incident occurred,

a fact corroborated by the [weather] records submitted

by the plaintiff. . . . As such, the defendant has met its

burden under the ongoing storm doctrine. The plaintiff

must therefore show that the condition that caused the

plaintiff to fall preexisted the ongoing storm and that

the defendant had notice of the condition. . . .

‘‘The plaintiff avers that a few days prior to the incident, he saw ice on the sidewalk in the area where he

fell. . . . At his deposition, the plaintiff could not recall

whether there had been any snow or ice on the sidewalk

the day before the incident. . . . The plaintiff also

could not conclusively state that the ice had not formed

during the ongoing storm. . . . The plaintiff did not

know when the ice first appeared, how it formed, or

how long it had been on the ground. . . . Nor did he

know its thickness. . . .

‘‘The plaintiff’s averment that he saw ice in the general vicinity of where he fell a few days before he fell is

insufficient to satisfy his burden. The plaintiff submitted

[weather] records to support his argument that ice was

present in the days preceding his fall. . . . However,

those records, while supporting the notion that ice

could have formed before his fall, do not raise a genuine

issue of material fact that ice had in fact formed, was

present in the area on the day he fell, establish its

thickness, or when it formed. . . . How and when the

ice formed is therefore speculation and conjecture, and

is insufficient to raise a genuine issue of material fact.

The plaintiff also has not shown that the defendant had

notice of the allegedly preexisting condition. Evidence

that there was ice in the general vicinity of the accident

is insufficient to raise a genuine issue of material fact
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Carty v. Merchant 99-111 Founders, LLC

as to whether the defendant had actual or constructive

notice. Belevich v. Renaissance I, LLC, [207 Conn. App.

119, 131, 261 A.3d 1 (2021)]. . . . For all of the foregoing reasons, the defendant’s motion for summary judgment is granted.’’ (Citations omitted.) This appeal followed. Additional facts and procedural history will be

set forth as necessary.

On appeal, the plaintiff claims that the court improperly granted summary judgment in favor of the defendant on the basis of the ongoing storm doctrine because

(1) the defendant never produced evidence to refute

the claim that the plaintiff fell on preexisting ice and

(2) the plaintiff raised genuine issues of material fact

as to whether he fell on preexisting ice. We disagree.

We begin by setting forth the standard of review

and legal principles necessary to our resolution of this

appeal. ‘‘Practice Book § 17-49 provides that summary

judgment shall be rendered forthwith if the pleadings,

affidavits and any other proof submitted show that there

is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.

A party moving for summary judgment is held to a strict

standard. . . . To satisfy his burden the movant must

make a showing that it is quite clear what the truth is,

and that excludes any real doubt as to the existence of

any genuine issue of material fact. . . . As the burden

of proof is on the movant, the evidence must be viewed

in the light most favorable to the opponent. . . . When

documents submitted in support of a motion for summary judgment fail to establish that there is no genuine

issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence

of such an issue. . . . Once the moving party has met

its burden, however, the opposing party must present

evidence that demonstrates the existence of some disputed factual issue. . . . It is not enough, however, for

the opposing party merely to assert the existence of
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Carty v. Merchant 99-111 Founders, LLC

such a disputed issue. Mere assertions of fact . . . are

insufficient to establish the existence of a material fact

and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]. . . .

Our review of the trial court’s decision to grant [a]

motion for summary judgment is plenary.’’ (Internal

quotation marks omitted.) Belevich v. Renaissance I,

LLC, supra, 207 Conn. App. 124.

In Kraus v. Newton, 211 Conn. 191, 558 A.2d 240

(1989), our Supreme Court held that, ‘‘[i]n the absence

of unusual circumstances, a property owner, in fulfilling

the duty owed to invitees upon his property to exercise

reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm

and a reasonable time thereafter before removing ice

and snow from outside walks and steps.’’ Id., 197–98.

The court reasoned that ‘‘[t]o require a landlord or other

inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or

ashes while a storm continues is inexpedient and

impractical.’’ Id., 198. The court also held, however,

that its decision did ‘‘not foreclose submission to the

jury, on a proper evidentiary foundation, of the factual

determinations of whether a storm has ended or

whether a plaintiff’s injury has resulted from new ice

or old ice when the effects of separate storms begin to

converge.’’ Id.

More recently, this court, in Belevich, clarified ‘‘(1)

precisely what a movant for summary judgment must

demonstrate to satisfy its initial burden when relying

on the [ongoing storm] doctrine and (2) any burdenshifting that may follow.’’ Belevich v. Renaissance I,

LLC, supra, 207 Conn. App. 126. ‘‘Noting the scant

authority from other jurisdictions on the issue of the

ongoing storm doctrine in the context of summary judgment, this court [in Belevich] adopted, as a matter of

Connecticut common law, the approach taken by the
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Carty v. Merchant 99-111 Founders, LLC

New York Appellate Division in Meyers v. Big Six

Towers, Inc., 85 App. Div. 3d 877, 877–78, 925 N.Y.S.2d

607 (2011), which held that, ‘[a]s the proponent of the

motion for summary judgment, the defendant ha[s] to

establish, prima facie, that it neither created the snow

and ice condition nor had actual or constructive notice

of the condition . . . . [T]he defendant [may sustain]

this burden by presenting evidence that there was a

storm in progress when the plaintiff fell . . . . [Upon

the defendant meeting its burden], the burden shift[s]

to the plaintiff to raise a triable issue of fact as to

whether the precipitation from the storm in progress

was not the cause of his accident . . . . To do so, the

plaintiff [is] required to raise a triable issue of fact

as to whether the accident was caused by a slippery

condition at the location where the plaintiff fell that

existed prior to the storm, as opposed to precipitation

from the storm in progress, and that the defendant

had actual or constructive notice of the preexisting

condition . . . .’ ’’ Herrera v. Meadow Hill, Inc., 217

Conn. App. 671, 681, 290 A.3d 377 (2023).

The plaintiff first claims that the court erred in rendering summary judgment for the defendant because the

defendant failed to produce any evidence refuting the

plaintiff’s claim that he fell on preexisting ice. Specifically, the plaintiff argues that ‘‘[i]n its motion for summary judgment, the only evidence offered by the [defendant] is excerpts of the plaintiff’s deposition and a

police report’’ including the plaintiff’s testimony ‘‘that

it was snowing when he fell.’’ In making this argument,

the plaintiff misstates the nature of the defendant’s

burden on summary judgment under the ongoing storm

doctrine. ‘‘As the proponent of the motion for summary

judgment, the defendant ha[s] to establish, prima facie,

that it neither created the snow and ice condition nor

had actual or constructive notice of the condition . . . .

[T]he defendant [may sustain] this burden by presenting
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Carty v. Merchant 99-111 Founders, LLC

evidence that there was a storm in progress when the

plaintiff fell . . . .’’ (Internal quotation marks omitted.)

Belevich v. Renaissance I, LLC, supra, 207 Conn. App.

127. Once the defendant sustains his burden, the burden

shifts to the plaintiff, at which time the plaintiff must

raise a triable issue of fact as to whether his fall was

caused by a slippery condition that existed prior to the

ongoing storm and whether the defendant had actual

or constructive notice of the allegedly preexisting condition. Id., 129.

We first consider, therefore, whether the trial court

correctly determined that the defendant satisfied its

initial burden in establishing ‘‘prima facie, that it neither

created the snow and ice condition nor had actual or

constructive notice of the condition . . . .’’ (Internal

quotation marks omitted.) Id., 127. In support of its

motion for summary judgment, the defendant submitted

the plaintiff’s deposition testimony that there was a

storm in progress at the time of his fall. Specifically,

the defendant presented excerpts from the plaintiff’s

deposition in which he testified that: (1) it was snowing

when he left the building after his shift ended; (2) it

had started snowing earlier that morning; and (3) when

he left work, it was still snowing and the sidewalk where

he fell was covered with snow. In addition, at oral

argument before this court, the plaintiff conceded that

it was undisputed that there was an ongoing storm at

the time of his fall. Thus, we conclude that the trial

court correctly concluded that the defendant satisfied

its initial burden of establishing, prima facie, that it

neither created the snow and ice condition nor had

actual or constructive notice of the condition. See id.

(‘‘[t]he defendant [may sustain] this burden by presenting evidence that there was a storm in progress when

the plaintiff fell’’ (internal quotation marks omitted)).

Accordingly, the burden shifted to the plaintiff to

demonstrate the existence of a genuine issue of material
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Carty v. Merchant 99-111 Founders, LLC

fact as to whether the plaintiff’s fall was caused by a

preexisting condition and whether the defendant had

actual or constructive notice of the allegedly preexisting

condition. The plaintiff claims that he satisfied that

burden through his affidavit, deposition transcripts, and

the weather records that he introduced into evidence.

We are not persuaded.

We begin by setting forth the standard adopted by

this court in Belevich regarding the plaintiff’s burden

on summary judgment under the ongoing storm doctrine. The court in Belevich, relying on various New

York state court cases, made clear that evidence presented by a plaintiff to demonstrate the existence of a

genuine issue of material fact cannot require a jury to

resort to conjecture and speculation in order to find

that there was a preexisting slippery condition that

caused the plaintiff to fall. See Campanella v. St. John’s

University, 176 App. Div. 3d 913, 913, 112 N.Y.S.3d 153

(2019) (plaintiff failed to raise triable issue of fact where

‘‘the opinions contained in an affidavit of the plaintiff’s

meteorologist as to when and how the alleged ice patch

was formed were based on speculation and conjecture’’), appeal denied, 35 N.Y.3d 914, 153 N.E.3d 447,

130 N.Y.S.3d 2 (2020); Battaglia v. MDC Concourse

Center, LLC, 175 App. Div. 3d 1026, 1027–28, 108

N.Y.S.3d 607 (2019) (court found that nothing in plaintiff’s deposition testimony or any evidence she submitted raised triable issue of fact and, therefore, ‘‘[t]o say

that old ice caused the subject ice patch as opposed to

the storm in progress would require a jury to resort to

conjecture and speculation in order to determine the

cause of the incident’’ (internal quotation marks omitted)), aff’d, 34 N.Y.3d 1164, 144 N.E.3d 367, 121 N.Y.S.3d

757 (2020); Powell v. Cedar Manor Mutual Housing

Corp., 45 App. Div. 3d 749, 750, 844 N.Y.S.2d 890 (2007)

(‘‘plaintiff’s contention that she fell on ‘old ice’ from a

prior storm which was hidden under the new snowfall
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Carty v. Merchant 99-111 Founders, LLC

is mere speculation and insufficient to defeat the defendants’ motion for summary judgment’’); DeVito v. Harrison House Associates, 41 App. Div. 3d 420, 421, 837

N.Y.S.2d 726 (2007) (‘‘plaintiff’s allegations that the ice

which allegedly caused her accident had been present

for ‘a day or two,’ or that it was ‘from another time,’

were insufficient to raise a triable issue of fact as to

whether she fell on ‘old’ ice’’). Furthermore, the court

stated that, ‘‘under the New York burden-shifting

approach that we expressly adopt today, even [e]vidence that there was ice in the general vicinity of the

accident prior to the storm is insufficient to raise a

triable issue of fact as to whether the defendant had

actual or constructive notice of the condition of the

specific area within the parking lot where the plaintiff

fell . . . .’’ (Internal quotation marks omitted.) Belevich v. Renaissance I, LLC, supra, 207 Conn. App. 131.

The plaintiff contends that his deposition testimony

and affidavit, in conjunction with the weather records

he submitted in opposition to the defendant’s motion for

summary judgment, created a genuine issue of material

fact with respect to whether he fell on preexisting ice

and whether the defendant had actual or constructive

notice of that condition. First, the plaintiff argues that

his deposition testimony and his affidavit demonstrate

that ‘‘the ice upon which he fell was preexisting.’’ At

his deposition, the plaintiff testified that he ‘‘slipped on

a patch of ice that was underneath the snow.’’ Additionally, he testified that it had been snowing throughout

the morning while he was working and that, when he

left work, it was actively snowing and there was an

accumulation of snow on the ground from the storm.

The plaintiff further testified that he did not know how

thick the ice he slipped on was, but that his best guess

was that it was less than one inch thick, and that it was

clear in color. The plaintiff also testified that he did not

know when the ice first appeared, how long it had been
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Carty v. Merchant 99-111 Founders, LLC

on the ground before his fall, or how it formed. In

response to a question as to how the ice formed, the

plaintiff responded: ‘‘I don’t think I can say [that] it was

not due to the weather conditions that [occurred] on

that day.’’ Although the plaintiff attempted to walk back

that testimony, stating that the ice ‘‘did not look like

it was caused’’ by the current storm, he nevertheless

admitted that he was ‘‘not sure how it got there.’’ Last,

the plaintiff testified at his deposition that during the

week leading up to his fall he had observed water, not

ice, on the sidewalk in the general area where he fell. In

his subsequent affidavit in opposition to the defendant’s

motion for summary judgment, however, the plaintiff

contradicted that deposition testimony and swore that

a few days prior to his fall, he saw ice and water on

the sidewalk in the area where he fell.

In addition to his deposition testimony and affidavit,

the plaintiff also points to the weather records he submitted in opposition to the defendant’s motion for summary judgment. He contends that those records support

his assertion that, ‘‘in the week prior to the fall, there

was precipitation that coincided with temperatures

above and below . . . freezing levels.’’ The plaintiff

offered no expert testimony interpreting or analyzing

those weather records, however, and the records themselves constitute no more than raw weather data,

including temperature ranges, precipitation levels, pressure levels, and wind levels during the period leading

up to the storm and the plaintiff’s fall.

On the basis of our plenary review of the entire record

that was before the court, we conclude that the trial

court correctly determined that the plaintiff failed to

satisfy his burden of presenting evidence sufficient to

create a genuine issue of material fact with respect to

whether the ice that caused him to fall was present

prior to the advent of the storm that was ongoing when

he fell. The evidence put forth by the plaintiff would,
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Carty v. Merchant 99-111 Founders, LLC

at best, require a jury to speculate on that point. Neither

the plaintiff nor any other witness testified that the ice

that caused him to fall was present prior to the ongoing

storm. On the contrary, the plaintiff admitted during

his deposition that he was ‘‘not sure how [the ice] got

there’’ and that he could not say that it was not due to

the weather conditions that had occurred on that day.

The weather records that the plaintiff submitted also

failed to create a genuine issue of material fact with

respect to whether the ice that caused him to fall was

present prior to the storm. At best, those records show

that it is possible that surface water may have been

present in the geographic region to which the records

pertained and that such water conceivably could have

frozen at one point or another somewhere within that

region. Asking a jury to conclude on the basis of those

records that the specific ice patch that caused the plaintiff to fall was formed from precipitation that had fallen

prior to the day of the storm, however, would require

a jury to engage in the kind of speculation and conjecture that this court has held is impermissible under the

ongoing storm doctrine. See Belevich v. Renaissance

I, LLC, supra, 207 Conn. App. 130–31.

Last, we note that, although the plaintiff testified at

his deposition that, in the week before he fell, he saw

water in the area where he fell and further swore in

his affidavit that, in the week before he fell, he saw ice

on the sidewalk in the area where he fell, the plaintiff

did not claim that he had observed ice in the precise

area where he fell on the sidewalk before the storm

began or that he saw ice at that location at a time when

it likely would have remained in that condition during

the time leading up to his fall. This court has held

that, ‘‘even [e]vidence that there was ice in the general

vicinity of the accident prior to the storm is insufficient

to raise a triable issue of fact as to whether the defendant had actual or constructive notice of the condition
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Carty v. Merchant 99-111 Founders, LLC

of the specific area . . . where the plaintiff fell . . . .’’

(Internal quotation marks omitted.) Id., 131.

As a result, we conclude that the trial court properly

granted the defendant’s motion for summary judgment

because the plaintiff failed to satisfy his burden of raising a genuine issue of material fact with respect to

whether the condition that caused him to sustain his

alleged injuries existed prior to the storm that was

ongoing at the time of his fall, or whether the defendant

had actual or constructive notice of the condition of

the sidewalk where the plaintiff fell.

The judgment is affirmed.

In this opinion the other judges concurred.