Clement v New York City Tr. Auth.

Clement v New York City Tr. Auth. 2014 NY Slip Op 07762 Decided on November 13, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 13, 2014
Mazzarelli, J.P., Sweeny, Moskowitz, Richter, Feinman, JJ.
13467 101148/06

[*1] Anthony Clement, Plaintiff-Appellant,

v

The New York City Transit Authority, Defendant-Respondent.

G. Wesley Simpson, P.C., Brooklyn (G. Wesley Simpson of counsel), for appellant.

Lawrence Heisler, Brooklyn (Anna J. Ervolina of counsel), for respondent.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered March 26, 2013, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The court properly granted defendant's motion based on the "storm in progress" defense (see Powell v MLG Hillside Assoc., 290 AD2d 345 [1st Dept 2002]; Pippo v City of New York, 43 AD3d 303, 304 [1st Dept 2007]). Although defendant inadvertently omitted the relevant climatological data from its initial motion papers, the affirmation of its counsel stated that it was snowing from about 11 p.m. on the night before the accident until 5 a.m., more than three hours after the accident, and plaintiff testified that it had stopped snowing only two hours before his fall. The obligation to take reasonable measures to remedy a dangerous condition caused by a storm does not commence until a reasonable time after the storm has ended (see Weinberger v 52 Duane Assoc., LLC, 102 AD3d 618, 619 [1st Dept 2013]). Based on plaintiff's testimony alone, a reasonable time had not yet elapsed.

Plaintiff failed to raise a triable issue of fact concerning whether defendant breached a duty to clean the subway stairs when trace amounts of precipitation were falling (see Prince v New York City Hous. Auth., 302 AD2d 285 [1st Dept 2003]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 13, 2014

CLERK