Miccio v. 2400 E. 3 Owner Corp.

2026 NY Slip Op 30676(U)

• Court: New York Supreme Court, Kings County
• Decided: February 19, 2026
• Docket: Index No. 512288/2024
• Status: Unpublished
• Author: Reginald A. Boddie

Opinion

Miccio v 2400 E. 3 Owner Corp. 2026 NY Slip Op 30676(U) February 19, 2026 Supreme Court, Kings County Docket Number: Index No. 512288/2024 Judge: Reginald A. Boddie Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.5122882024.KINGS.001.LBLX036_TO.html[03/09/2026 3:45:56 PM] FILED: KINGS COUNTY CLERK 02/24/2026 02:26 PM INDEX NO. 512288/2024 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/24/2026

At an IA Commercial Term Part 95 of the upreme Court of the tate of ew York held in and for the County of Kings, at the Courthouse located at 360 Adams treet, Borough of Brooklyn City and tate of ew York on the 19th day of February 2026.

PR ES ENT: Honorable Reginald A. Boddie Ju tice, Suprem Court -------------------------------------------------------------------x TRACY MICCIO Index o. 512288/2024 Plaintiff: Cal. o. M l

-against- DECISIO AND ORD ~R

2400 EAST 3 OWNER ORP. and AL VIC PROP RTY MA AGEME T ,

Defendants. ------------------------------------------------------------------x

The following -filed papers read herein YSCEF Doc os. Ml 1-40

Upon the foregoing cited papers Defendants motion for summary judgment is decided a

follows:

This matter arises from an accident that occurred on January 16, 2024, at approximately

8:20 p.m, when the Plaintiff slipped and fell on now or ice in the rear courtyard of h r apartment

building located at 2400 East 3 rd Street, Brooklyn, NY, from which she allegedly suffi red injuries.

Th superintendent of the building witnessed the fall and indicat d it snowed "off and on all day

and the area had been mostly cleared of snow and salted. H acknowledged h had engaged in a

conversation with plaintiff just prior to her fall , and when she fell he observed an ar a of melt d

snow that had been push d to the side of the walkway where someone could potentially fall (Tr.

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Pg 75, 6-11 ; 21 -25· Tr. Pg 76· 1-6). t the time of her fall he was addressing other spot which

he determined also r quired alt (Tr. Pg 62 · 24-25).

De:fi ndants a sert at th time of the accident there was a storm in progress. Plain ti ff asserts

there was no storm in progres and e en if it were Defendants were al o negligent in clearing th

snow and ice from the premi es.

It is well established that summary judgment is grant d when ' th propon nt makes a prima

facie showing of entitlement to judgment as a matter of law, tend ring sufficient evidence to

d monstrat the ab ence of any material issues of fact, and the opponent fails to rebut that

showing" (Brandy B. v Eden Cent. School Dist., 15 Y3d 297, 302 [2010] [citation

omitted]). Once the proponent has made a prima facie showing, the burden then shifts to the

motion ' s opponent to present identiary facts in admissible form ufficient to raise a genuine,

triable issue of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If there is any

doubt as to the exi Lenee of a triable fact the motion for ummary judgment must be denied

(Rotuba Extruders v eppo 46 NY2d 223 231 [ 1978]). Upon a motion for summary judgment,

the court' s function is one of issue finding rather than issue determination (Sillman v Twentieth

entury-Fox Film orp. 3 NY2d 395 404 [I 957]). " It is not the fun tion of a court . .. to make

credibility determinations or findi ngs of fact, but rather to identify material triable issues of fact

(or point to the lack th reof)' ( Vega v Restani Const,-·. Co,p. 18 Y3d 499 , 505 (2012] [citation

omitted]).

ew York City Administrative Code§ 16- 123, provides that:

ery owner, lessee t nant occupant or other person, having charge of any building or lot of ground in the city, abutting any street wher the sidewalk is paved shall within four hours after the snow ceases to fall, or after the deposit of any dirt or other material upon such sidewalk, r move th now or ice, dirt, or other material from the sidewalk and gutter the time between nine post meridian and seven ante meridian not being included in the above period of four hours.

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As the proponent of the motion for ummary judgment, Defendants hav the burden of

establishing that they neither created the snow and ice condition nor had constructive notice of

the condition (see Meyers v Big Six Tower , Inc., 85 AD3d 877 [2d Dept 20 11 ]). This burden

may be met by establishing that there was a torm in progress (Smilh v Christ's First

Pre byterian Church o.f Hempstead, 93 AD3d 839 (2d Dept 2012]). In this e ent, the property

owner will not be held liable until an adequate pe1iod of time has passed following the cessation

of the storm, during which it may ameliorate the hazards caused by the storm (id.).

The certified Climatological Data from JFK airport establish that two inches of snow fe ll

between the evening of January I 5 and 16 2024, ending at approximately 5:08 p.m a little more

than three hours prior to th accident. Th weather record also rev al freezing rain, freezing

drizzle and mist throughout the day. Accordingly, the court finds D fi ndants wer entitl ed to the

benefits ofa storm in progress until 5:08 pm on January 16, 2024 and thus their tatutory duty to

clear the snow was suspended until at least 9:08 p.m (Fernandez v Uy ofNew York, 125 AD3d

800 [2d Dept 2015).

However, previous courts have held once a land owner or tenant in possession elects to

engage in snow r moval, although entitled to the benefit of a storm in progress, a here, it is

required to act with reasonable care so as to avoid creating a hazardous condition or exacerbating

a natural hazard er ated by th torm (id.)([citations and quotations omitted]).

Here, it is evident by th building superintendent' s testimony that, even after the subject

area was initially shoveled and alted throughout the day and continuing until Plaintiff's fa ll,

ther remained portions of the walkway that warranted further attention, inclusive of the area

where plaintiff fi IL Accordingly, there is an issue of fact regarding whether Defendants, in

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removing the now, acted with reasonable care so as to avoid creating a hazardous condition or

exacerbated a natural hazard created by the storm (see Fernandez v ity of ew York, 125 AD3d

800 [2d Dept 2015). Therefor , the motion for summary judgment is denied.

E TE R:

Hon . ~aid A. Boddi Ju tice, Supreme Court HON. REGINALD A. BODDIE J.S.C.

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