Swartz v. Liberatore

254 A.D.2d 692, 678 N.Y.S.2d 552, 1998 N.Y. App. Div. LEXIS 10342

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 1998
• Status: Published

Opinion

Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Sharon Swartz (plaintiff) when she slipped and fell on snow and ice in the parking lot of defendants’ apartment complex. Supreme Court erred in denying defendants’ motion for summary judgment dismissing the complaint. Defendants established their entitlement to judgment as a matter of law by submitting proof that there was a snow storm in progress at the time of the accident. Defendants “had no duty to take corrective action during the progress of the storm” (Siegel v Molino, 236 AD2d 879). Plaintiffs failed to raise a triable issue of fact whether the ice on which plaintiff fell had accumulated prior to the storm (see, Jensen v Roohan, 233 AD2d 587; see also, Krutz v Betz Funeral Home, 236 AD2d 704, lv denied 90 NY2d 803; Ruck v ISS Intl. Serv. Sys., 236 AD2d 702). (Appeal from Order of Supreme Court, Erie County, Sedita, Jr., J. — Summary Judgment.) Present — Denman, P. J., Pine, Wisner, Balio and Fallon, JJ.