WILLIAM F. MASTRO
Affirmed.
Frekhtman & Associates, Brooklyn, N.Y. (Arkady Frekhtman and Stephen J. Smith of counsel), for appellant. Krez & Flores, LLP, New York, N.Y. (Alexandra Vandoros of counsel), for respondents.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Strauss, J.), entered January 31, 2013, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly sustained personal injuries when he slipped and fell on black ice on an elevated train platform that was exposed to the elements. The plaintiff commenced this action against the defendants. The defendants moved for summary judgment dismissing the complaint, contending that they could not be held liable for the plaintiff's injuries since a storm was in progress at the time of the accident, and their efforts to keep the station platform free from snow and ice during an ongoing storm did not create or exacerbate the natural hazard presented by the storm. The Supreme Court granted the motion.
A defendant moving for summary judgment in an action predicated upon the presence of snow or ice has the burden of establishing, prima facie, that it neither created the snow and ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition ( see Huan Nu Lu v. New York City Tr. Auth., 113 A.D.3d 818, 978 N.Y.S.2d 907; McBryant v. Pisa Holding Corp., 110 A.D.3d 1034, 973 N.Y.S.2d 757). “Under the ‘storm in progress' rule, a property owner will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm ‘until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm’ ” ( Popovits v. New York City Hous. Auth., 115 A.D.3d 657, 658, 981 N.Y.S.2d 562, quoting Cotter v. Brookhaven Mem. Hosp. Med. Ctr., Inc., 97 A.D.3d 524, 524, 947 N.Y.S.2d 608; see Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 810 N.Y.S.2d 121, 843 N.E.2d 748; Wei Wen Xie v. Ye Jiang Yong, 111 A.D.3d 617, 618, 974 N.Y.S.2d 113; Marchese v. Skenderi, 51 A.D.3d 642, 856 N.Y.S.2d 680). “However, once a property owner elects to engage in snow removal activities, the owner must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm” ( Wei Wen Xie v. Ye Jiang Yong, 111 A.D.3d at 618, 974 N.Y.S.2d 113; see Cotter v. Brookhaven Mem. Hosp. Med. Ctr., Inc., 97 A.D.3d 524, 947 N.Y.S.2d 608; Kantor v. Leisure Glen Homeowners Ass'n., Inc., 95 A.D.3d 1177, 944 N.Y.S.2d 640).
Here, the evidence submitted by the defendants in support of their motion for summary judgment, including certified climatological data and transcripts of the deposition testimony of the parties, demonstrated, prima facie, that a storm was in progress at the time of the accident ( see Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 925 N.Y.S.2d 607; Skouras v. New York City Tr. Auth., 48 A.D.3d 547, 852 N.Y.S.2d 206; DeStefano v. City of New York, 41 A.D.3d 528, 838 N.Y.S.2d 599). Furthermore, the defendants established, prima facie, that their efforts to remove snow and ice from the platform did not create a hazardous condition or exacerbate the natural hazard created by the storm ( see Wei Wen Xie v. Ye Jiang Yong, 111 A.D.3d at 617, 974 N.Y.S.2d 113; McCurdy v. KYMA Holdings, LLC, 109 A.D.3d 799, 971 N.Y.S.2d 137; Kaplan v. DePetro, 51 A.D.3d 730, 858 N.Y.S.2d 304). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's contention that he slipped and fell on old ice that was the product of a prior storm is speculative ( see Smith v. Christ's First Presbyt. Church of Hempstead, 93 A.D.3d 839, 941 N.Y.S.2d 211; DeVito v. Harrison House Assoc., 41 A.D.3d 420, 837 N.Y.S.2d 726; Small v. Coney Is. Site 4A–1 Houses, Inc., 28 A.D.3d 741, 814 N.Y.S.2d 240).
On appeal, the plaintiff contends that the transcripts of the hearing conducted pursuant to Public Authorities Law § 1276(4) and the transcript of her deposition testimony, as well as the transcript of the deposition of the defendants' witness, are not in admissible form, and that, accordingly, the Supreme Court should not have considered them in connection with the defendants' motion for summary judgment. This contention, improperly raised for the first time on appeal, is not properly before this Court ( see Perez v. City of New York, 104 A.D.3d 661, 960 N.Y.S.2d 477; Marinkovic v. IPC Intl. of Ill., 95 A.D.3d 839, 943 N.Y.S.2d 561).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.