Holmes v. 215 Knickerbocker, LLC

Opinion

Holmes v 215 Knickerbocker, LLC

2026 NY Slip Op 04844

August 5, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Rashawn Holmes, appellant,

v

215 Knickerbocker, LLC, et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 5, 2026

2025-02439, (Index No. 517837/20)

Mark C. Dillon, J.P.

Deborah A. Dowling

Carl J. Landicino

James P. McCormack, JJ.

Harmon, Linder, & Rogowsky, Esqs. (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.

Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, NY (Timothy M. Shelley of counsel), for respondents.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Wayne Saitta, J.), dated February 7, 2025. The judgment, upon an order of the same court dated January 22, 2025, granting the defendants' motion for summary judgment dismissing the amended complaint, is in favor of the defendants and against the plaintiff dismissing the amended complaint.

ORDERED that the judgment is reversed, on the law, with costs, the defendants' motion for summary judgment dismissing the amended complaint is denied, the amended complaint is reinstated, and the order is modified accordingly.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained when he slipped and fell on ice while descending vaulted stairs leading from the sidewalk to the cellar of premises owned by the defendant 215 Knickerbocker, LLC, managed by the defendant L Rose Realty, Inc., and leased to the defendant Superette BK, LLC, in Brooklyn. It is undisputed that snow was falling at the time of the plaintiff's accident. The defendants moved for summary judgment dismissing the amended complaint on the ground that the storm in progress rule applied. In an order dated January 22, 2025, the Supreme Court granted the motion. Thereafter, a judgment dated February 7, 2025, was entered upon the order in favor of the defendants and against the plaintiff dismissing the amended complaint. The plaintiff appeals from the judgment.

"'A defendant moving for summary judgment in an action predicated upon the presence of snow or ice has the burden of establishing, prima facie, that it neither created the snow or ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition'" (Cassino-Sharp v Whispering Hills Home Owners Assn., Inc., 219 AD3d 457, 458, quoting Ryan v Beacon Hill Estates Coop., Inc., 170 AD3d 1215, 1215; see Corlette v SN Auto Repairs, Inc., 227 AD3d 858, 859). "This burden may be satisfied by 'presenting evidence that there was a storm in progress when the injured plaintiff allegedly slipped and fell'" (Beaton v City of New York, 196 AD3d 625, 626, quoting Smith v Christ's First Presbyt. Church of Hempstead, 93 AD3d 839, 839-840). "'Under the so-called 'storm in progress' rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises [*2]until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm'" (Cassino-Sharp v Whispering Hills Home Owners Assn., Inc., 219 AD3d at 458, quoting Marchese v Skenderi, 51 AD3d 642, 642; see Amato v Brookhaven Professional Park L.P., 162 AD3d 620, 620).

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law. The defendants' submissions, which included, among other things, a transcript of the plaintiff's deposition testimony and an affirmation from a meteorologist, raised triable issues of fact as to whether the ice condition upon which the plaintiff fell existed before the storm that was then in progress and whether the defendants had constructive notice of the condition (see Townsend v City of New York, 221 AD3d 1042, 1043; Cassino-Sharp v Whispering Hills Home Owners Assn., Inc., 219 AD3d at 458; Taormina-Fucci v 100-02 Rockaway Blvd. 26, LLC, 201 AD3d 766, 767; Amato v Brookhaven Professional Park L.P., 162 AD3d at 620-621). Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the amended complaint, without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The plaintiff's remaining contention is without merit.

DILLON, J.P., DOWLING, LANDICINO and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court