Micheler v. Gush

Appellate Division of the Supreme Court of New York

Micheler v. Gush

256 A.D.2d 1051, 684 N.Y.S.2d 297, 1998 N.Y. App. Div. LEXIS 14142

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 30, 1998

StatusPublished

Cited by11 cases

This text of 256 A.D.2d 1051 (Micheler v. Gush) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Micheler v. Gush, 256 A.D.2d 1051, 684 N.Y.S.2d 297, 1998 N.Y. App. Div. LEXIS 14142 (N.Y. Ct. App. 1998).

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Opinions

Yesawich Jr., J.

Appeal from an order of the Supreme Court (Ellison, J.), entered August 6, 1997 in Chemung County, which granted defendant’s motion for summary judgment dismissing the complaint.

Plaintiff sustained a fracture of her left leg when she slipped and fell on an icy step at a rental property, owned by defendant, located at 919 Grand Central Avenue in the City of Elmira, Chemung County. Although plaintiff alleged a variety of defects in the stairs upon which she fell, the record establishes that the proximate cause of her fall was the ac[1052]*1052cumulation of ice on the steps. Plaintiff testified that while she was en route to the premises, at approximately 7:00 a.m., it was raining lightly and turning colder. When she left the apartment, about two hours later, it was still “drizzling” and she observed water dripping from the roof onto the steps, which appeared wet. As she began to descend the stairs, her foot “hit * * * ice”, causing her to fall.

After issue was joined and depositions conducted, defendant moved for summary judgment arguing that the “storm in progress” doctrine precludes the relief sought by plaintiff. Supreme Court granted defendant’s motion and this appeal ensued.

We affirm. Inasmuch as the ice on which plaintiff slipped was produced by winter weather conditions — namely, a drizzling rain coupled with falling temperatures — which were ongoing at the time of the accident, defendant cannot be held liable for plaintiff’s injuries merely because he failed to remove the ice (see, Zima v North Colonie Cent. School Dist., 225 AD2d 993, 994; Fusco v Stewart’s Ice Cream Co., 203 AD2d 667, 668). Although liability can ensue when a landowner has affirmatively created or exacerbated a hazardous condition (as, for example, where remedial efforts have actually increased the danger [see, Zima v North Colonie Cent. School Dist., supra, at 994]), there is no indication in this record that defendant took any affirmative action whatsoever that caused or contributed to the buildup of ice. Indeed, even plaintiff’s own bill of particulars refers only to defendant’s failure to “stop” or “prevent” the formation of ice, not to any action that exacerbated that condition.

And, absent probative evidence that the failure to install an eaves trough over this entranceway was unreasonable or violative of any standard — significantly, the record is devoid of expert proof bearing out this hypothesis (compare, Amazon v British Am. Dev. Corp., 216 AD2d 702, 703) — liability cannot be predicated on that claimed defect. Accordingly, Supreme Court did not err in dismissing the complaint.

Mercure, Crew III and Peters, JJ., concur.

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Yesawich Jr., J.

Appeal from an order of the Supreme Court (Ellison, J.), entered August 6, 1997 in Chemung County, which granted defendant’s motion for summary judgment dismissing the complaint.

Plaintiff sustained a fracture of her left leg when she slipped and fell on an icy step at a rental property, owned by defendant, located at 919 Grand Central Avenue in the City of Elmira, Chemung County. Although plaintiff alleged a variety of defects in the stairs upon which she fell, the record establishes that the proximate cause of her fall was the ac[1052]*1052cumulation of ice on the steps. Plaintiff testified that while she was en route to the premises, at approximately 7:00 a.m., it was raining lightly and turning colder. When she left the apartment, about two hours later, it was still “drizzling” and she observed water dripping from the roof onto the steps, which appeared wet. As she began to descend the stairs, her foot “hit * * * ice”, causing her to fall.

After issue was joined and depositions conducted, defendant moved for summary judgment arguing that the “storm in progress” doctrine precludes the relief sought by plaintiff. Supreme Court granted defendant’s motion and this appeal ensued.

We affirm. Inasmuch as the ice on which plaintiff slipped was produced by winter weather conditions — namely, a drizzling rain coupled with falling temperatures — which were ongoing at the time of the accident, defendant cannot be held liable for plaintiff’s injuries merely because he failed to remove the ice (see, Zima v North Colonie Cent. School Dist., 225 AD2d 993, 994; Fusco v Stewart’s Ice Cream Co., 203 AD2d 667, 668). Although liability can ensue when a landowner has affirmatively created or exacerbated a hazardous condition (as, for example, where remedial efforts have actually increased the danger [see, Zima v North Colonie Cent. School Dist., supra, at 994]), there is no indication in this record that defendant took any affirmative action whatsoever that caused or contributed to the buildup of ice. Indeed, even plaintiff’s own bill of particulars refers only to defendant’s failure to “stop” or “prevent” the formation of ice, not to any action that exacerbated that condition.

And, absent probative evidence that the failure to install an eaves trough over this entranceway was unreasonable or violative of any standard — significantly, the record is devoid of expert proof bearing out this hypothesis (compare, Amazon v British Am. Dev. Corp., 216 AD2d 702, 703) — liability cannot be predicated on that claimed defect. Accordingly, Supreme Court did not err in dismissing the complaint.

Mercure, Crew III and Peters, JJ., concur.

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256 A.D.2d 1051, 684 N.Y.S.2d 297, 1998 N.Y. App. Div. LEXIS 14142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/micheler-v-gush-nyappdiv-1998.

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