Werner v Jag 1st Ave Realty LLC |
2024 NY Slip Op 00366 [223 AD3d 603] |
January 25, 2024 |
Appellate Division, First Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
Tatyana Werner, Appellant, v Jag 1st Ave Realty LLC, Respondent/Third-Party Plaintiff-Respondent, et al., Defendant, et al., Third-Party Defendant. |
Law Offices of William Pager, Brooklyn (William Pager of counsel), for appellant.
Farber Brocks & Zane L.L.P., Garden City (Lester Chanin of counsel), for respondent.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered January 30, 2023, which granted defendant Jag 1st Ave Realty LLC's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
Defendant made a prima facie showing of entitlement to summary judgment based on the storm-in-progress doctrine by submitting certified climatological records showing that it was snowing at the time of plaintiff's accident, as well as plaintiff's deposition testimony acknowledging that there was heavy snow at that time (see Sherman v New York State Thruway Auth., 27 NY3d 1019, 1020-1021 [2016]; DeJesus v Belle Apts. Hous. Dev. Funding Corp., 191 AD3d 424, 425 [1st Dept 2021]; see also Administrative Code of City of NY § 16-123 [a]).
In opposition, plaintiff fails to raise an issue of fact. We reject plaintiff's argument that defendant might be liable because it failed to adhere to its own snow and ice removal procedures during a snowstorm. Liability cannot be based on the violation of an internal rule imposing a higher standard of care than the one provided by law, unless plaintiff also makes a showing of detrimental reliance (see Prince v New York City Hous. Auth., 302 AD2d 285, 286 [1st Dept 2003]). Plaintiff makes no such showing, but merely speculates without any supporting evidence that defendant may have made the accumulation of snow worse by negligently removing it (see Bi Fang Zhou v 131 Chrystie St. Realty Corp., 125 AD3d 429, 430 [1st Dept 2015]). Plaintiff also fails to provide any evidence that ice under the snow was already on the sidewalk before the snow began (see Levene v No. 2 W. 67th St., Inc., 126 AD3d 541, 542 [1st Dept 2015]). Concur—Moulton, J.P., Kapnick, Mendez, Higgitt, O'Neill Levy, JJ.