Storm-in-Progress Requires an “Appreciable Accumulation”; Overnight Icing Response Can Establish Notice When a Paved Area Is Left Untreated

Case: Powers v State of New York, 2026 NY Slip Op 01833 (App Div, 3d Dept, Mar. 26, 2026)
Disposition: Reversed; liability granted to claimant; remitted for damages-only trial

1. Introduction

Parties and posture. Claimant Patrick Powers, a contractor working at Woodbourne Correctional Facility, sued the State of New York in the Court of Claims for negligence after slipping on ice in a parking area. Following a bifurcated nonjury trial on liability, the Court of Claims dismissed the claim. The State had declined to call witnesses after claimant’s proof and pressed a “storm in progress” defense. The Third Department reversed and entered judgment for claimant on liability, remitting for a damages-only trial.

Key issues. The appeal centered on (i) whether the State had actual or constructive notice of the icy condition in the specific location of the fall and failed to act reasonably, (ii) whether the State’s overnight sanding/salting response and policies bore on notice and breach, and (iii) whether the “storm in progress doctrine” barred liability where the weather event was described as “pockets of freezing rain” producing a thin glaze of ice.

2. Summary of the Opinion

The Third Department held that a dangerous condition existed and that the State either had actual notice of the icy conditions or, at minimum, constructive notice of the hazardous condition at the location where claimant fell. The court emphasized that the facility called in a worker to sand/salt overnight due to hazardous conditions, that all accessible paved areas were supposed to be treated, and that the specific paved area where claimant fell was not treated despite being accessible to a sander truck. The court also rejected the State’s storm-in-progress argument, reasoning that the doctrine requires proof of an ongoing hazardous weather condition amounting to more than “trace” precipitation and more than an “appreciable accumulation,” and that—on this record—the thin “glaze” from intermittent freezing rain did not justify application of the doctrine. A dissent would have affirmed for lack of proof of actual or constructive notice at the precise location.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Result)

Appellate review after nonjury trial.

  • Williams v State of New York, 140 AD3d 1376 (3d Dept 2016) and Miletta v State of New York, 229 AD3d 981 (3d Dept 2024): The majority invoked these cases to underscore its power to “independently review the weight of the evidence,” while still deferring to credibility findings. This framing mattered because the majority effectively reweighed the notice/breach proof differently than the Court of Claims and the dissent.

General premises-duty and slip-and-fall notice framework.

  • Guzman v State of New York, 221 AD3d 1107 (3d Dept 2023) and Williams v State of New York, 140 AD3d 1376: Used for the baseline rule that the State, like any landowner, must keep property reasonably safe “in view of all the circumstances.”
  • Gonzalez v State of New York, 60 AD3d 1193 (3d Dept 2009), lv denied 13 NY3d 712 (2009): Supplied the familiar claimant’s burden: prove a dangerous condition created by defendant or known (actual/constructive) to defendant and causation. The majority accepted danger and causation and focused on notice and reasonableness of remediation.

Constructive notice and “visible and apparent” considerations (including black ice).

  • Slaughter v State of New York, 238 AD2d 770 (3d Dept 1997) and Citta v State of New York, 35 AD2d 288 (4th Dept 1970): The majority relied on these to support the proposition that several hours can be a sufficient interval for constructive notice where conditions are such that the owner should have discovered and addressed them. The majority analogized the overnight response window (roughly 12:00 a.m.–2:00 a.m. sanding/salting; fall at ~7:00 a.m.) as ample time.
  • Hanna v State of New York, 84 Misc 3d 1244[A], 2024 NY Slip Op 51681[U] (Ct Cl, 2024 Brindisi, J.): Cited as additional support for treating the passage of time and hazardous surface conditions as adequate to impute constructive notice.
  • Doyle v Tops Mkts., LLC, 234 AD3d 1339 (4th Dept 2025): Used by the majority (and referenced by the dissent’s constructive-notice standard) to reinforce that constructive notice requires a condition to be “visible and apparent” and to have existed long enough to be discovered and remedied.

Distinguishing “general awareness” from actionable notice.

  • Cardinale v Watervliet Hous. Auth., 302 AD2d 666 (3d Dept 2003): The majority distinguished it, emphasizing that this case was not about a defendant who undertook reasonable efforts and merely had “general awareness” that snow/ice may accumulate; rather, the State’s own policy required sanding/salting accessible paved areas and it left this one untreated.

Reasonable-safety balancing and due care.

  • Montross v State of New York, 219 AD2d 845 (4th Dept 1995): Provided the balancing language the majority used to characterize the breach: likelihood and seriousness of injury versus the “slight burden” of fixing the hazard.
  • De Los Santos v State of New York, 290 AD2d 271 (1st Dept 2002) and Saiia v State of New York, 190 AD2d 1059 (4th Dept 1993): Cited to reinforce the conclusion that failing to correct a known dangerous condition constitutes lack of due care.

Storm in progress doctrine—scope and threshold.

  • Gagne v MJ Props. Realty, LLC, 221 AD3d 1210 (3d Dept 2023) and Scheuer v State of New York, 198 AD3d 1225 (3d Dept 2021): The majority drew two core principles: (i) no duty to remove while an ongoing storm is creating the hazard (and for a reasonable time after), but (ii) if the storm has “tailed off” such that there is no longer an “appreciable accumulation,” the rationale for delay abates.
  • Anson v Monticello Raceway Mgt., Inc., 217 AD3d 1231 (3d Dept 2023): Used to emphasize the doctrine’s purpose (avoid futile clearing while precipitation quickly re-covers surfaces) and to require proof of an “ongoing hazardous weather condition,” not merely any inclement weather.
  • Edmund-Hunter v Toussie, 190 AD3d 946 (2d Dept 2021) and Haraburda v City of New York, 168 AD3d 485 (1st Dept 2019): Cited to support the “more than trace accumulations” threshold for invoking storm in progress.

The dissent’s notice framework (and its supporting authorities).

  • Vance v Burkhart, 229 AD3d 869 (3d Dept 2024): Cited for the nondelegable duty to keep premises reasonably safe.
  • Robinson v Trade Link Am., 39 AD3d 616 (2d Dept 2007); Hernandez v City of New York, 241 AD3d 1293 (2d Dept 2025); Weichsel v State of New York, 231 AD3d 1459 (3d Dept 2024); McCormick v Patriot Assoc., 292 AD2d 573 (2d Dept 2002); Simmons v Metropolitan Life Ins. Co., 84 NY2d 972 (1994): These anchored the dissent’s view that without creation or actual/constructive notice of ice at the specific spot, liability cannot attach.
  • Johnson v Pixley Dev. Corp., 169 AD3d 1516 (4th Dept 2019) and Navetta v Onondaga Galleries LLC, 106 AD3d 1468 (4th Dept 2013): Used by the dissent to argue claimant failed to prove actual notice because there were no prior complaints or proof the State was actually aware of ice at the Green Building frontage.
  • Rodriguez v Binghamton Hous. Auth., 101 AD3d 1222 (3d Dept 2012); Meyers v Big Six Towers, Inc., 85 AD3d 877 (2d Dept 2011); Kaplan v DePetro, 51 AD3d 730 (2d Dept 2008); Smith v State of New York, 260 AD2d 819 (3d Dept 1999); Piacquadio v Recine Realty Corp., 84 NY2d 967 (1994): Cited for the principle that “general awareness” of winter conditions does not establish notice of the specific condition that caused the fall.
  • Wheeler v Grande'Vie Senior Living Community, 31 AD3d 992 (3d Dept 2006); DiGrazia v Lemmon, 28 AD3d 926 (3d Dept 2006), lv denied 7 NY3d 706 (2006): Cited by the dissent to reject “affirmative creation” based merely on imperfect snow/ice removal efforts.
  • Lloyd v 797 Broadway Group, LLC, 216 AD3d 1290 (3d Dept 2023): Used by the dissent to argue that failure to salt is not a breach absent notice that ice was present at that location.
  • Pierson v North Colonie Cent. School Dist., 74 AD3d 1652 (3d Dept 2010), lv denied 15 NY3d 715 (2010); Stoddard v G.E. Plastics Corp., 11 AD3d 862 (3d Dept 2004); Golonka v Saratoga Teen & Recreation of Saratoga Springs, 249 AD2d 854 (3d Dept 1998): Invoked by the dissent as “black ice” cases illustrating the difficulty of proving “visible and apparent” conditions.
  • Gilbert v Evangelical Lutheran Church in Am., 43 AD3d 1287 (4th Dept 2007), lv denied 9 NY3d 815 (2007): Cited for the “sufficient time to discover and remedy” requirement.
  • Vincent v Landi, 123 AD3d 1183 (3d Dept 2014): Noted by the dissent by “compare,” reflecting circumstances where more particularized proof may support notice.

3.2 Legal Reasoning

(a) Dangerous condition and causation were essentially undisputed. The majority agreed with the Court of Claims that an icy, slippery condition existed in the paved area where claimant fell. The superintendent testified it was “very slippery” and that it “should have been sanded/salted” but was not; the State’s snow/ice worker admitted he did not treat that location; claimant’s expert explained the freezing rain created a glaze that salt would have mitigated. On this record, the untreated ice was treated as the proximate cause of the fall.

(b) Notice: the majority treated the overnight response as evidence of particularized awareness of hazardous icing. The key move in the majority opinion is to connect the State’s conduct—calling in an employee around midnight to sand/salt for “safety” because of “road conditions”—to notice. In the majority’s view, the State’s recognition that conditions warranted multiple sanding/salting passes, combined with its own policy that “all paved areas ... accessible by maintenance vehicles are to be plowed [and] sanded/salted,” supported actual notice of the hazardous icing episode and, at minimum, constructive notice that untreated accessible paved surfaces would be dangerously slippery.

(c) Constructive notice: time window and “visible and apparent” were inferred from surrounding facts. The majority relied on the expert’s timeline (freezing rain through 3:45 a.m.) and the State’s earlier response (12:00–2:00 a.m.) to conclude the State “should have been aware” of slippery untreated surfaces hours before the 7:00 a.m. fall. Although claimant described “clear, black ice,” the majority pointed to the superintendent’s testimony (“[e]verything was slippery that morning”), the overnight call-in, and the location description to find the hazardous condition sufficiently “visible and apparent” for constructive notice purposes.

(d) Breach: leaving an accessible paved area untreated despite a policy to treat such areas. The majority distinguished a scenario in which the owner undertook reasonable treatment and is charged only with general awareness (Cardinale v Watervliet Hous. Auth.). Here, the State implemented its usual winter precautions but omitted a paved contractor parking/staging area that was accessible to the sander truck and intended to be treated. The “relatively slight burden” of sanding/salting that particular paved area, contrasted with the foreseeable risk of injury, supported the finding that the State failed to maintain the premises reasonably safely (Montross v State of New York).

(e) Storm in progress: the majority announced a meaningful threshold inquiry. Rather than assuming a “reasonable time after” window starting at 3:45 a.m., the majority framed a prior “threshold question”: does the event qualify as a “storm” for the doctrine at all? Drawing from Scheuer v State of New York, Anson v Monticello Raceway Mgt., Inc., and related cases, the court held the doctrine requires proof of an ongoing hazardous weather condition producing more than trace precipitation and more than an “appreciable accumulation.” On this record—“pockets of freezing rain” producing a glaze of 0.05 to 0.1 inches, with unrefuted expert testimony—the majority concluded the doctrine “has no place in this litigation.”

Dissent’s core reasoning. The dissent treated the overnight salting decision as only a “general awareness” of winter risk, not notice of ice at the specific Green Building frontage; emphasized the absence of prior complaints or proof the call-in was prompted by conditions at that spot; and stressed claimant’s own testimony that the “black ice” was not seen before the fall. In short, the dissent applied a stricter “location-specific notice” requirement and would have affirmed without reaching storm in progress.

3.3 Impact

1) A clearer “threshold” gate for storm in progress. The opinion reinforces (and operationalizes) the idea that courts must first decide whether the precipitation episode is the kind of ongoing hazardous event the doctrine is meant to address—one producing more than “trace” or less-than-“appreciable” accumulation—before shifting to the “reasonable time thereafter” inquiry. Defendants invoking storm in progress should expect closer scrutiny of meteorological proof and accumulation magnitude, especially where precipitation is intermittent and thin-glaze icing is at issue.

2) Winter-maintenance actions can cut both ways on notice. Calling in staff overnight and performing multiple sanding/salting passes may be used by claimants to show the owner appreciated hazardous conditions and should have treated all designated/accessible paved areas. In facilities with defined policies (e.g., treat “all paved areas ... accessible”), failure to include an accessible area in the treatment route can be framed not merely as imperfect remediation, but as unreasonable omission supporting liability.

3) “Black ice” proof may be bolstered by contextual visibility. Even where a claimant describes “clear” or “black” ice, the majority signals that visibility/apparency can be supported by surrounding circumstances (widespread slipperiness, corroborating witnesses, contemporaneous maintenance response), not solely by whether the claimant saw ice pre-fall.

4) Litigation consequences: damages-only remittal without comparative fault. Because the State introduced no proof of claimant fault, the court declined to remit for apportionment, illustrating a tactical risk where a defendant rests after claimant’s case in a bifurcated liability trial.

4. Complex Concepts Simplified

  • Actual notice: The owner actually knew about the specific hazard (often shown by prior complaints, prior incidents, or direct observation). The dissent demanded tight proof of knowledge at the precise location.
  • Constructive notice: Even if the owner did not actually know, the law treats the owner as if it should have known because the hazard was visible/apparent and existed long enough to be discovered and fixed.
  • “Visible and apparent” (especially with black ice): A condition must be discoverable upon reasonable inspection. “Black ice” complicates this because it can be difficult to see; the majority relied on broader evidence that surfaces were plainly slippery.
  • Storm in progress doctrine: A rule that pauses the duty to remove snow/ice while precipitation is actively creating the hazard (and for a reasonable period after). This opinion emphasizes that not every minor or intermittent weather event qualifies as a “storm”—there must be an ongoing hazardous condition with more than “trace” and more than not “appreciable” accumulation.
  • Bifurcated trial: The court hears liability first and damages later. Here, the appellate court resolved liability and sent the case back only to calculate damages.

5. Conclusion

Powers v State of New York is most significant for two linked clarifications in New York slip-and-fall jurisprudence involving winter conditions: (1) courts must treat “storm in progress” as a doctrine with a real threshold—requiring proof of an ongoing hazardous event producing more than trace and more than not “appreciable” accumulation—rather than a reflexive defense whenever winter weather appears; and (2) an owner’s overnight recognition of hazardous icing conditions, coupled with an established policy to treat all accessible paved areas, can support a finding of actual or constructive notice and breach when a particular accessible paved area is left untreated. The decision is likely to influence how parties litigate thin-glaze icing events, how meteorological evidence is framed, and how institutional snow/ice policies are used to establish the scope of reasonable care.