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Sherman v. New York State Thruway Authority

120 A.D.3d 792 Court N.Y. App. Div. Decision date 2014-08-27 English

Judges Skelos, J.E, Balkin, Hall and Maltese, JJ., concur.

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p. 792
Rodney Sherman, Respondent, v New York State Thruway Authority, Appellant.
[991 NYS2d 344]

In a claim to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Court of Claims (Mignano, J.), dated February 1, 2013, as denied its motion for summary judgment dismissing the claim.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the defendant’s motion for summary judgment dismissing the claim is granted.

Contrary to the determination of the Court of Claims, the defendant, in support of its motion, established that there was a storm in progress at the time of the accident. The deposition testimony of the claimant, which was supported by certified

p. 793
climatological data, demonstrated that precipitation was falling when the claimant allegedly slipped and fell on ice on a sidewalk at the Troop T barracks in Newburgh on February 25, 2011, and for a substantial period of time prior to the accident. Inasmuch as the weather condition in question was in progress when the claimant’s accident occurred, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the claim (see Meyers v Big Six Towers, Inc., 85 AD3d 877 [2011]; Mazzella v City of New York, 72 AD3d 755 , 755 [2010]; see also Jefferson v Long Is. Coll. Hosp., 234 AD2d 589 [1996]). In opposition to the defendant’s prima facie showing, the claimant failed to raise a triable issue of fact.

Accordingly, the Court of Claims should have granted the defendant’s motion for summary judgment dismissing the claim.

Skelos, J.E, Balkin, Hall and Maltese, JJ., concur.

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