This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
A property owner generally is not liable for a fall on ice that forms during a storm, or for a reasonable time after it ends, but whether the storm was still going on can be a question of fact. Here, the First Department affirmed the denial of a condominium’s motion for summary judgment dismissing a black ice fall claim, because the woman’s testimony and a video of her fall raised a question of fact on whether the freezing rain had stopped, and the condominium did not show when the walkway was last inspected or cleaned.
The case
- Court
- Appellate Division, First Department
- Decided
- October 27, 2026
- Case
- Brown v Parkchester Preserv. Mgt.
- Citation
- 2026 NY Slip Op 06240
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff alleged that she slipped and fell on black ice on a walkway. She sued Parkchester Preservation Management and others. Defendant Parkchester South Condominium moved for summary judgment dismissing the complaint, relying on certified weather records and a meteorologist’s affidavit that there was freezing rain at the time of her fall and that it had been “consistently precipitating for approximately 16.5 hours before the accident” (2026 NY Slip Op 06240, *1). The Supreme Court, Bronx County, denied the motion, and the defendants appealed.
The holding
The First Department unanimously affirmed. The condominium’s weather proof shifted the burden to the plaintiff, but “plaintiff raised a triable issue of fact as to whether a storm was in progress at the time of her fall” (id.). She testified that the freezing rain had stopped before she slipped and fell on black ice, “and a video of the accident did not show any precipitation” (id.). The video showed her and a few pedestrians with umbrellas and hoods, but she testified that she carried her umbrella because she did not know what weather she would meet. She had used an errata sheet to retract her earlier deposition answer that there was precipitation at the time, and the motion court “properly declined to disregard plaintiff’s testimony” on the ground that the retraction was feigned, “as questions of credibility are left to the trier of fact” (id.). The court added that there were questions of fact “as to whether black ice existed prior to the storm, and whether defendant had constructive notice of that condition” (id.), because “[d]efendant did not submit evidence establishing when the walkway was last inspected or cleaned” (id.).
What changed
Nothing new: this applies settled law, including the Court of Appeals’ storm-in-progress rule in Solazzo v New York City Tr. Auth. (6 NY3d 734).
What it means
- The storm-in-progress rule is a defense, not an automatic win. Weather records can be answered with testimony and video of what was happening at the place and time of the fall. Our post on slips on snow and ice explains the rule.
- Here, the condominium did not show when the walkway was last inspected or cleaned, which left open whether it should have known about ice that may have been there before the storm.
- An owner’s snow and ice work can matter too. The court noted that the property manager’s testimony did not conclusively show that any work done “did not exacerbate the alleged icy condition” (id.).
Our view
Commentary by Frank N. Eskesen. This section is opinion.
A weather report, while objective evidence, can tell you what fell more broadly, like over a neighborhood or other larger area, over many hours, but it does not necessarily prove what fell at the exact time and location where an accident occurred. On the other hand, a video showing the accident site is also objective evidence, and the two may point in different directions. Here, with this divergence, the court left that question for trial. We note, too, that the court would not throw out her testimony because she had corrected it on an errata sheet. A word about “black ice.” In our experience, people who say they slipped on black ice usually mean the ice was thin, smooth, and especially slippery, not that it was “invisible.” But some courts have described black ice as ice that “is, by its very nature, difficult to see” (Martin v RP Assoc., 37 AD3d 1017, 1018 [3d Dept 2007], quoting an earlier decision), and an owner may use that description to argue that it could not have known the ice was there. Here, the case did not turn on what anyone could see. The condominium never showed when the walkway was last inspected or cleaned, so whether it should have known about the ice was left for trial. Two lessons. 1. If you fall on ice, and you can do so safely, notice whether it is still raining or snowing at that moment, photograph the spot, and look for cameras nearby; video can be recorded over in a matter of weeks (see our entry on Fernandez v Port Authority). When you describe the ice, say what you saw and felt (how big the patch was, whether it was clear or shiny, and other conditions you may have observed about its character after you fell), rather than using a phrase like “black ice,” which others may interpret by their own definition rather than yours. Get legal advice promptly. 2. For lawyers, a storm-in-progress motion invites three questions: was the storm really still going on at that spot, was the ice there before the storm, and when did anyone last inspect, clean, or treat the area? And if a client says “black ice,” ask what the client means; if it means slick rather than invisible, the testimony should say so. As always in cases like this, be sure to obtain weather records.
Topics
Court: First Department. Year: 2026. Result: affirmed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 27, 2026. Posted October 28, 2026.
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