Sow v Fedcap Rehabilitative Servs., Inc.
2018 NY Slip Op 02909 [160 AD3d 604]
April 26, 2018
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 30, 2018


[*1]
 Aminata Sow, Appellant,
v
Fedcap Rehabilitative Services, Inc., Respondent.

David Gendelman, New York (Gary E. Divis of counsel), for appellant.

Eustace, Marquez, Epstein, Prezioso & Yapchanyk, New York (Maureen E. Peknic of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered February 3, 2017, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established prima facie that it was entitled to summary dismissal of the complaint by submitting certified weather records, an affidavit by a meteorologist, and plaintiff's own testimony showing that a winter storm was in progress at the time that plaintiff slipped and fell on sidewalk ice in front of its building (see Levene v No. 2 W. 67th St., Inc., 126 AD3d 541 [1st Dept 2015]).

In opposition, plaintiff failed to raise a triable issue, merely speculating that she slipped on ice that had formed after previous snowfalls had melted and refrozen. Contrary to plaintiff's contention, in asserting the storm-in-progress defense, defendant was not required to submit records showing the last time it removed snow and ice from its sidewalks; that is evidence required to refute constructive notice of a hazardous condition (see e.g. Gautier v 941 Intervale Realty LLC, 108 AD3d 481 [1st Dept 2013]). Concur—Mazzarelli, J.P., Kapnick, Kahn, Kern, Singh, JJ.