This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

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No. 56 

Rodney Sherman,

 Appellant,

 v.

New York State Thruway Authority,

 Respondent.

Norman M. Block, for appellant.

Andrew Zajac, for respondent.

New York City Transit Authority, amicus curiae.

MEMORANDUM:

The order of the Appellate Division should be affirmed,

with costs.

Claimant, a New York State Trooper, slipped and fell on

an icy sidewalk outside the trooper barracks in Newburgh. The

sidewalk is located on property owned and maintained by defendant

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New York State Thruway Authority. Claimant commenced this

personal injury action against the Authority, alleging that it

negligently failed to maintain the sidewalk by failing to remove

ice and/or placing salt after a winter storm. Following

discovery, both parties moved for summary judgment. As relevant

here, the Authority argued that it was entitled to judgment as a

matter of law under the "storm in progress" doctrine. The Court

of Claims denied the parties' motions, finding questions of fact

as to whether a storm was in progress at the time of claimant's

fall. The Appellate Division reversed and granted the Authority

summary judgment (120 AD3d 792 [2d Dept 2014]). We granted

claimant leave to appeal and now affirm. 

Although a landowner owes a duty of care to keep his or

her property in a reasonably safe condition, he "will not be held

liable in negligence for a plaintiff's injuries sustained as the

result of an icy condition occurring during an ongoing storm or

for a reasonable time thereafter" (Solazzo v New York City Tr.

Auth., 6 NY3d 734, 735 [2005]). The Authority established prima

facie that it was entitled to judgment as a matter of law by

submitting uncontroverted evidence that a storm was ongoing at

the time of claimant's fall. Claimant admitted at his deposition

that "an ice storm" had taken place the night before the

accident, and an "intermittent wintry mix" of snow, sleet and

rain persisted the next morning until 6:50 a.m., when claimant

arrived at the trooper barracks for work. Claimant testified,

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and a certified weather report confirmed, that it was still

raining at 8:15 a.m. when he walked to his vehicle and slipped on

a patch of ice. The undisputed facts that precipitation was

falling at the time of claimant's accident and had done so for a

substantial time prior thereto, while temperatures remained near

freezing, established that the storm was still in progress and

that the Authority's duty to abate the icy condition had not yet

arisen. In opposition, claimant failed to raise a triable issue

of fact. 

Therefore, the Appellate Division properly granted the

Authority's motion for summary judgment dismissing the complaint.

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Sherman v New York State Thruway Authority 

No. 56 

RIVERA, J.(dissenting):

This appeal involves the application on summary

judgment of the storm-in-progress doctrine to claimant Rodney

Sherman's personal injury action against the New York State

Thruway Authority (Authority), arising from his slip and fall on

an icy patch of a sidewalk under the care and responsibility of

the Authority. On the record before us, triable issues of

material fact exist as to whether the storm in question had

ended, and if so whether a reasonable period of time had passed

to hold the Authority liable for negligence resulting in

claimant's injuries. Therefore, the Appellate Division should be

reversed, and I dissent from the majority's determination to the

contrary.

"Since [summary judgment] deprives a litigant of [the

party's] day in court it is considered a drastic remedy which

should only be employed when there is no doubt as to the absence

of triable issues" (Andre v Pomeroy, 35 NY2d 361, 364 [1974]).

"The proponent of a summary judgment motion must make a prima

facie showing of entitlement to judgment as a matter of law,

tendering sufficient evidence to demonstrate the absence of any

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material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320,

324 [1986]). Thus, "[a] party moving for summary judgment must

demonstrate that 'the cause of action or defense shall be

established sufficiently to warrant the court as a matter of law

in directing judgment' in the moving party's favor" (Jacobsen v

New York City Health and Hosps. Corp., 22 NY3d 824, 833 [2014],

quoting CPLR 3212 [b]). "This burden is a heavy one and on a

motion for summary judgment, facts must be viewed in the light

most favorable to the non-moving party" (William J. Jenack Estate

Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475

[2013] [internal quotation marks omitted]), "and every available

inference must be drawn in the [non-moving party's] favor"

(People v Torres, 26 NY3d 742, 763 [2016]). If the moving party

makes out a prima facie showing, "the burden then shifts to the

non-moving party to establish the existence of material issues of

fact which require a trial of the action" (Jacobsen, 22 NY3d at

833 [internal quotation marks omitted]).

In support of its summary judgment motion, the

Authority relied on the storm-in-progress doctrine, which

provides that "[a] property owner will not be held liable in

negligence for a plaintiff's injuries sustained as the result of

an icy condition occurring during an ongoing storm or for a

reasonable time thereafter" (Solazzo v New York City Tr. Auth, 6

NY3d 734, 735 [2005]). "The reasonableness of the time within

which [an owner] must respond to its duty to clear the sidewalks

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is measured from the time that the storm comes to an end

since...'responsibility for ice conditions arises, at the most,

only after the lapse of a reasonable time for taking protective

measures and never while a storm is still in progress'"

(Valentine v City of New York, 86 AD2d 381, 384 [1st Dept 1982],

affd 57 NY2d 932 [1982], quoting Valentine v State of New York,

197 Misc 972, 975 [Ct Claim 1950], affd 277 AD 1069 [3d Dept

1950], lv denied 277 AD 1080 [1950]). The doctrine reflects

practical concerns related to the challenges and dangers of

maintaining property in reasonably safe conditions during

inclement weather (see Powell v MLG Hillside Assoc., L.P., 290

AD2d 345, 345 [1st Dept 2002]). It "allow[s] workers a

reasonable period of time to clean the walkways," and "is

designed to relieve the worker[s] of any obligation to shovel

snow while continuing precipitation or high winds are simply

re-covering the walkways as fast as they are cleaned, thus

rendering the effort fruitless" (id.). Thus, when weather

conditions are no longer storm like, or where a storm has turned

to rainy conditions that neither imperil workers nor frustrate

clean up efforts, the temporary suspension of a property owner's

duty of care is no longer justified. 

In accordance with these legal principles, in order for

the Authority to establish its storm-in-progress defense and thus

carry its prima facie burden on summary judgment, it had to

proffer admissible evidence that at the time of Sherman's

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accident there was an ongoing storm, or that the storm had ceased

and a reasonable amount of time had not yet elapsed before the

Authority was required to ameliorate the icy sidewalk conditions. 

In support of the motion, the Authority submitted deposition

testimony from four individuals -- Sherman, an Authority

Maintenance Supervisor, and two other Authority employees -- as

well as a certified weather report from the National Climatic

Data Center for Stewart International Airport, which is located

five miles from where the accident occurred. 

According to Sherman's deposition testimony, on the

date of his injury he was working as a state trooper at Troop T

barracks in Newburgh, New York. In describing the weather

conditions proceeding the accident, Sherman stated there was an

ice storm in the area the night before, that during his commute

to work the next morning the weather consisted of a "wintry mix"

of sleet and rain, and when he arrived at the barracks at 6:50

a.m. the weather was an "intermittent wintry mix." He remained

indoors until 8:15 a.m. when he left to respond to a traffic

accident. When he stepped outside the barracks he noted that it

"had warmed up considerably" and there was a light rain falling. 

He walked about eight feet before he slipped and fell on an icy

area of the sidewalk.

The Supervisor testified that the Authority was

responsible for maintaining the sidewalks around the barracks,

but during a storm they were a third priority, after the highways

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and service areas. Two construction equipment operators

responsible for maintaining the roads during a storm, who worked

the respective 3 p.m. to 11 p.m. and 11 p.m. to 7 a.m. shifts the

night before and into the day of the accident, both recorded in

their logs and testified at their depositions that it was

raining. The climatological report for the Airport, located five

miles away from the barracks, indicated rain and mist and above

freezing temperatures from 10:45 p.m. the night before and for

hours following on the day of the accident. 

In opposition to the Authority's motion, Sherman relied

on his testimony and the evidence submitted by the Authority, as

well as various daily log books from other members of the

Authority's salt and sand crew. The log books for the two

construction equipment operators indicate that from 11 p.m. the

night before the accident until 6 a.m. the day of, there was

light to medium rain. Sherman argued that this evidence

established the storm had ended hours before the accident, and no

later than 5:45 a.m.

Applying the storm-in-progress rule, and giving Sherman

every favorable inference, as the Court must on summary judgment

(see Torres, 26 NY3d at 763), there are triable questions of

material fact as to the actual weather conditions before and at

the moment Sherman fell. Specifically, there are questions of

fact as to when the storm ended, if at all, and if it did end,

how much time had elapsed before Sherman slipped and fell on the

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icy sidewalk. The Authority claimed that the original ice storm

was ongoing because at a minimum, winter precipitation continued

during defendant's drive to work, and rain was falling during a

period of near-freezing temperatures. Sherman, on the other

hand, argued that the storm was over when he sustained his

injuries because by that time all road work had been completed,

which would not be the case if the storm was ongoing, and at the

time of his injury the weather had warmed up, producing light,

and not freezing, rain. 

We have never held that above-freezing rain alone

constitutes a type of storm-in-progress that would relieve a

property owner from taking any action to clear or maintain the

property. Thus, if an ice storm has changed, due to warming

weather, into mere rain, then the storm has ended. Applying this

test the Authority's summary judgment submissions do not

establish whether the storm ended or, if so, whether insufficient

time had elapsed to require the Authority to take protective

measures. Sherman testified there was a wintry mix falling the

night before and until 6:50 a.m. the day of the accident, and

that at 8:15 a.m., when he exited the barracks, moments before

his fall, the temperature was considerably warmer and it was

raining. The Authority's employees, log books, and the

climatological report all corroborate his testimony that at least

the hour before and at the time of the accident, the temperature

was above-freezing and it was raining. The Authority's crew

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workers' depositions and log books indicated light to moderate

rain throughout the night and the morning of the accident. 

Therefore, there remain triable questions of material fact as to

whether the storm ended and if so when, requiring a trier of fact

to resolve the nature of the precipitation both preceding and at

the time of Sherman's fall, and whether the rain conditions were

storm-like. Furthermore, factual questions remain as to whether

the precipitation was a post-storm event preventing the Authority

from taking protective measures to avoid accidents from the

accumulated icy conditions caused by the storm. In other words,

if the storm conditions had passed, such that there was only

above-freezing rain, then the justification for the storm-inprogress rule no longer holds water. 

Contrary to the majority's conclusory statement that

"undisputed facts" establish a storm-in-progress at the time

Sherman fell (maj opn at 3), the summary judgment submissions

demonstrate that the weather conditions are highly contested.

Although the parties agree there was an ice storm the night

before the accident, that is where their agreement ends. Given

that the summary judgment proof in the form of Sherman's

testimony, the Authority's employees' statements and documentary

evidence, and the climatological report, all indicate that abovefreezing rain was falling in the hours before and at the time of

the accident, material factual questions exist as to the nature

of the weather conditions and the applicability of the storm-in-

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progress doctrine. To the extent the majority infers the stormlike nature of the precipitation, such inference favors the

Authority as the moving party. However, on a summary judgment

motion this Court must "view the facts in the light most

favorable" to Sherman as the non-moving party, and "even if the

jury at a trial could, or likely would decline to draw inferences

favorable to [Sherman]," the Court "must indulge all available

inferences" in his favor (Torres, 26 NY3d at 763). Those

inferences, at a minimum, lend support to Sherman's argument that

at the time of his accident the ice storm had passed, evidenced

by the existence of non-freezing rain, requiring the Authority to

take appropriate safety measures to address the accumulated icy

conditions.

* * * * * * * * * * * * * * * * *

Order affirmed, with costs, in a memorandum. Chief Judge DiFiore

and Judges Pigott, Stein and Garcia concur. Judge Rivera

dissents in an opinion in which Judges Abdus-Salaam and Fahey

concur.

Decided May 5, 2016

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