Haraburda v. City of New York

Haraburda v City of New York (2019 NY Slip Op 00223) Haraburda v City of New York 2019 NY Slip Op 00223 Decided on January 15, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on January 15, 2019 Sweeny, J.P., Richter, Kapnick, Gesmer, Kern, JJ. 8096 160021/14 [*1]Lidia Haraburda, Plaintiff-Appellant, v The City of New York, Defendant-Respondent. Sullivan & Brill, LLP, New York (James Healy of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent. Order, Supreme Court, New York County (James E. d'Auguste, J.), entered June 16, 2017, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied. On February 15, 2014, shortly before 6:00 p.m., plaintiff slipped on ice in a pedestrian walkway parallel to the sidewalk and landed on the pavement. Trace amounts of snow, totaling .04 inches, fell between 11:00 a.m and 6:00 p.m. on the date of the accident. However, the area received an accumulation of 10.9 to 12.5 inches of snow and ice during a storm that took place between February 13, 2014 at 12:30 a.m. and February 14, 2014 at 6:00 a.m, 35 hours before plaintiff's accident, according to the meteorologist's affidavit, which the court should have considered (see Guzman v Broadway 922 Enters., LLC, 130 AD3d 431 [1st Dept 2015]). Defendant has failed to establish its right to summary judgment based on the storm in progress doctrine as the record establishes that at the time of plaintiff's accident, there was no storm but rather only trace amounts of snow (see Powell v MLG Hillside Assoc., 290 AD2d 345 [1st Dept 2002]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JANUARY 15, 2019 CLERK