On February 25, 2021, the Supreme Court State of New York Appellate Division, First Judicial Department unanimously affirmed the trial court’s grant of summary judgment to GRSLBG&B’s clients in a weather related fall down case. The litigation arose when plaintiff slipped on black ice on an exterior staircase as she was leaving work on February 2, 2015. GRSLBG&B’s client leased the premises where the accident occurred to plaintiff’s employer. There was snowy cold weather during the previous weeks, and a snowstorm with freezing rain ended about 45 minutes prior to the accident. The trial court granted summary judgment pursuant to the Storm in Progress Doctrine.
The Storm in Progress Doctrine suspends the duty of a land owner/tenant to remedy a dangerous condition caused by an ongoing storm until a reasonable amount of time has passed after the storm ceases. To avoid the Storm in Progress defense, Plaintiff argued that her expert’s opinions established the existence of a genuine issue of fact to defeat the defense. Plaintiff asserted that her expert established that the ice plaintiff encountered accrued from previous storms, which if believed vitiated the Storm in Progress Defense and created an issue of fact as to the defendant’s breach of a duty of care. The trial court, in granting summary judgment, rejected and barred plaintiff’s expert on net opinion grounds.
Upon receiving notice of appeal of the trial court’s decision, GRSLBG&B’s insurance carrier client retained the Firm’s New York Appellate team to serve as Appellate Counsel for its insured. At issue on appeal was whether the trial court improvidently granted summary judgment in the face of two divergent expert opinions, and whether the trial court improperly barred plaintiff’s expert as a net opinion. On appeal, Mr. Schlesinger and Mr. O’Gara argued that the trial court properly barred plaintiff’s expert, that plaintiff failed to present proof of the existence of a genuine issue of material fact, and that GRSLBG&B’s client successfully presented a prima facie proof of its defense under the storm in progress doctrine. Specifically, they argued, that the court properly barred plaintiff’s expert because the opinion lacked any nexus to the factual record and specifically contradicted the testimony of plaintiff herself.
On Appeal, the Court agreed and affirmed the trial court’s decision. The Appellate Division opined that plaintiff’s expert failed to provide support for her position because the expert’s opinion lacked any support from the record and was purely speculative in nature. Further, the Court agreed that GRSBG&B’s client successfully established the Storm in Progress Defense, thereby entitling it to a summary dismissal of plaintiff’s complaint.
Congratulations to Eric and Aran on a job well done!
 Eric S. Schlesinger, Esq. is a Shareholder in GRSLBG&B’s Litigation Department. He defends wide variety of clients in the Courts in New York and New Jersey State and Federal Courts. In addition to his general liability practice, he handles appeals in both States. Eric can be reached at Eschlesinger@grsl.com
 Aran J. O’Gara, Esq. is a member of the NY Litigation Department handling the defense of general liability matters in New York State and the Eastern and Southern Districts of the New York Federal Courts. Aran can be reached at AOGara@grsl.com