New York Appeals Court Raises the Bar for the "Storm in Progress" Defense in Winter Slip-and-Fall Cases

Every winter, New York courts see a familiar pattern of lawsuits: someone slips on snow or ice on a sidewalk, in a parking lot, or in a building entryway, and the property owner responds by invoking what is commonly known as the "storm in progress" rule. Under that doctrine, a property owner generally is not liable for injuries caused by an icy or snowy condition that formed during an active storm, or for a reasonable period after the storm ends, on the theory that requiring constant clearing while precipitation is still falling would be both impractical and unsafe. It is one of the most frequently raised, and most frequently misunderstood, defenses in New York premises liability litigation. A decision issued this month by the Appellate Division, Second Department, gives property owners, and the people who sue them, a clearer picture of exactly what that defense does and does not cover.

In Batista v Allerton Ave Estates, LLC, decided September 16, 2026, the plaintiff was injured after falling during an active snowstorm on the defendants' property. The defendants moved for summary judgment, arguing that because snow was actively falling at the time of the fall, the storm-in-progress rule barred the claim as a matter of law. The trial court agreed and dismissed the case before it could reach a jury. On appeal, the Second Department reversed. The panel found that while the defendants had established that a storm was indeed in progress when the plaintiff fell, that showing alone was not enough. To win summary judgment on this defense, the court explained, a defendant must also affirmatively demonstrate that the specific slippery condition that caused the fall resulted from the storm then underway, rather than from snow or ice left over from an earlier storm the property had not yet addressed. Because the defendants' evidence left that question open, along with the related question of whether they had constructive notice of any pre-existing icy condition, the appellate court found triable issues of fact remained and sent the case back for further proceedings.

The distinction the court drew matters a great deal in practice. The storm-in-progress rule is not a blanket shield that applies to every fall that happens to occur while it is snowing; it protects owners specifically from liability for hazards created by the storm that is actually in progress. If a property already had icy patches left over from a storm days earlier, and simply had not cleared them by the time a new storm began, the rule does not automatically excuse that pre-existing hazard just because fresh snow happens to be falling when someone is hurt. Courts across New York's four appellate departments have applied this defense with varying degrees of strictness over the years — the doctrine tends to be applied somewhat more readily upstate than in the downstate departments that include New York City and its surrounding counties — but the basic requirement that a defendant affirmatively rule out a prior-storm origin for the hazard is consistent statewide, and Batista is a timely reminder of how seriously appellate courts take that burden.

For injured plaintiffs, the case underscores why the timeline and history of weather in the days surrounding a fall can be just as important as the fall itself. Establishing when a storm began and ended, whether there had been earlier snow or ice accumulation that a property owner had not addressed, and what steps, if any, the property took to clear walkways before the current storm began, can all be central to defeating a storm-in-progress defense. That kind of evidence, including certified weather records and documentation of the property's own snow-removal practices, is often most readily available soon after an accident, before records age out of easy reach or a property's own maintenance logs are lost. For property owners and their insurers, the decision is a reminder that simply pointing to falling snow on the day of an accident will not necessarily be enough to end a case before it reaches a jury.

Anyone in New York who has been injured in a fall involving snow or ice, whether on a sidewalk, in a parking area, or inside a building entrance, and who has questions about how a case like Batista might apply to their situation, is welcome to contact Baltazard Law Office, which represents personal injury clients across New York State on a contingency basis, to discuss their situation.

Attorney Advertising. Prior results do not guarantee a similar outcome.

Sources

1. Batista v Allerton Ave Estates, LLC, 2026 NY Slip Op 05265 — Appellate Division, Second Department, New York State Unified Court System, Official Reports (decided September 16, 2026)
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3. "Although Plaintiff Fell During a Snowstorm, the Defendants Did Not Demonstrate the Slippery Condition Was Not the Result of a Prior Storm; Summary Judgment Pursuant to the Storm in Progress Rule Should Not Have Been Granted (Second Dept)" — New York Appellate Digest (September 16, 2026)
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5. "Storm in Progress: The Best Defense You Never Heard Of" — New York State Bar Association

By Baltazard Law Office