Mitch Greene Wins Second Department Reversal in Upstate Snow and Ice Case

May 28, 2015

Russo & Toner’s special appellate counsel Mitchell A. Greene won an important victory at the Appellate Division Second Department when he successfully argued for reversal of the lower court’s decision denying our motion for summary judgment in the case of Scott v. Avalon Bay Communities, et al. 125 AD3d 839.

 

The case involved a slip and fall injury on an alleged snow and ice condition.  The accident occurred in the parking lot of the apartment complex where plaintiff was a resident in Pomona (Rockland County) New York.  There had been a snow storm two days earlier. The plaintiff sued our client, the property owner, and the snow removal contractor.    

 

The defendants eventually moved for summary judgment.  Both motions were denied by Judge Loehr in Supreme Court, Rockland County. The lower court had determined that plaintiff, through her expert, Nicholas Bellizzi, raised an issue of fact regarding the positioning of a pile of snow such that it was allegedly caused to melt and “refreeze” due to changing temperatures during the course of the evening.  The accident occurred early in the morning on a weekend. 

 

Both defendants appealed.  The Second Department reversed the lower court, granted both motions, and awarded defendants one bill of costs.

 

By focusing on the facts of the case and through the use of deposition testimony--from the snow removal contractor and from the property maintenance supervisor--Mitch was able to convince the appellate judges that our client did not create the alleged hazardous condition, nor have actual or constructive notice of the condition.  Mitch was also successful in persuading the Court that the affidavit from the plaintiff’s expert… “as to the origin of the hazardous condition was speculative and conclusory…”  

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