Generally, a property owner in New York is not liable for slip-and-fall accidents that occur while the storm is still in progress, since the duty to remedy the snow/ice is not triggered until after the storm ends … or so we thought.

In Ndiaye v NEP W. 119th St. LP, plaintiff slipped on ice on the front steps of defendant’s building and was injured. Defendant moved for summary judgment arguing that it was not liable, as there was a storm in progress at the time of the accident. While the lower court agreed with defendant, the First Department reversed and denied defendant’s motion.

Defendant’s meteorologist had stated that a winter storm was in progress from midnight until 2:00 p.m. on the day of plaintiff’s accident. Plaintiff’s accident occurred at 11:30 a.m. However, the court found that there was a lull in the storm from 8:27 a.m. until 11:35 a.m, and sinceprecipitation had tailed off to the extent that there was no appreciable accumulation, the rational for continued delay in snow and ice removal abated and the storm in progress rule should not be applied. The Court held that there was an issue of fact as to whether the accident occurred while the storm was still in progress or whether it occurred during a significant lull and whether defendant had time to remedy the dangerous condition during that lull.

The Court also noted that defendant’s expert’s affidavit stated that approximately 17 inches of snow and ice covered the area untreated and undisturbed at the start of the day when the accident occurred. The Court held that the expert did not state whether the alleged icy condition that caused plaintiff’s accident was a result of the precipitation from that day or whether it was a result of ice that may have remained on the stairs from prior snow.

While the storm in progress rule is a good defense to a typical snow and ice case, it is important to analyze the weather records to verify that the storm was actually in progress at the time of the accident. Also, as here, the expert’s affidavit failed to specify the cause of the ice which ultimately weakened defendant’s argument.

Thus, Yogi Berra’s proverb, “It ain’t over ’till it’s over” apparently does not apply to the storm in progress rule, since this in-progress storm was “over” long enough to defeat summary judgment.  Thanks to Anne Henry for her contribution to this post.