Rothrock v. Cottom

115 A.D.2d 242, 495 N.Y.S.2d 857, 1985 N.Y. App. Div. LEXIS 54489

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1985
• Status: Published

Opinion

Judgment unanimously reversed, on the law, without costs, motions granted and complaint dismissed. Memorandum: In this negligence action, plaintiff Elnora Roth-rock claimed that she slipped and fell on defendants’ driveway, breaking her right wrist. It was undisputed at trial that plaintiff fell because of an accumulation of ice on the driveway, and that the storm which had caused this condition was still in progress at the time of the accident. It is well settled that " '[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 in progress’ ” (Valentine v City of New York, 86 AD2d 381, 384, affd 57 NY2d 932, quoting Valentine v State of New York, 197 Misc 972, 975, affd 277 App Div 1069, lv denied 302 NY 952). Since plaintiff fell on ice formed during a storm which was in progress at the time of the accident, she cannot recover (Moorhead v Hummel, 36 AD2d 682, 683; Falina v Hollis Diner, 281 App Div 711, affd 306 NY 586). Defendants’ motions at trial to dismiss the complaint on this ground should have been granted. (Appeal from judgment of Supreme Court, Livingston County, Rosenbloom, J.—personal injury.) Present—Hancock, Jr., J. P., Doerr, Green, O’Donnell and Schnepp, JJ.