MEMORANDUM DECISION and ORDER I. BACKGROUND On January 16, 2018, at 3:30 in the afternoon, Plaintiff Richard Schoonmaker was working part-time for Federal Express, and was making a pickup at Starfire Systems, located at 8 Sarnowski Drive, Glenville, New York. Dkt. No. 2, Compl. at 7. After Plaintiff parked his FedEx Sprinter van near the door, he traveled through freshly fallen snow to pick up a package inside the shop. Dkt. No. 24-4, Richard Schoonmaker Dep. at p. 75. He followed the same route upon his return, and after walking around the front of his van, he slipped and fell on his back. Id. at p. 81. The slip and fall was recorded by an exterior video camera located at the facility, and that video has been presented to the Court in support of the presently pending Motion. See Dkt. No. 24-13, Exhibit A. According to the Plaintiff, underneath the snow where he fell was a patch of hidden ice. Richard Schoonmaker Dep. at p. 83. As a result of the fall, Plaintiff alleges that he was severely injured and was required to undergo full left knee replacement surgery in July 2018. Id. at p. 106. This action was initially commenced in the Rensselaer County Supreme Court, but was removed to Federal Court on November 16, 2018, based upon principles of diversity. Dkt. No. 1. On September 13, 2019 the parties consented to proceed before the undersigned in accordance with 28 U.S.C. §636(c) and FED. R. CIV. P. 73. Dkt. No. 22. Defendants have now filed a Motion for Summary Judgment. Dkt. No. 24. In sum, Defendants argue that because the Plaintiff fell while a snowstorm was still in progress, no claim of negligence can be stated against the Defendants. Dkt. No. 24-14, Defs.’Mem. of Law at pp. 1-7. Alternatively, Defendants argue that summary judgment is appropriate due to the lack of any admissible evidence that Defendants were on notice of any hazardous condition which allegedly caused Plaintiff’s fall. Id. at pp. 7-9. Plaintiffs oppose the Motion. Dkt. Nos. 27, 28, 29, & 30. Plaintiffs generally dispute that a snowstorm was occurring at the time of the fall. See Dkt. No. 28, Pls.’ Rule 7.1 Response at
10 & 28. Even if the storm-in-progress defense had some application, Plaintiffs assert that it was the pre-existing underlying ice condition, not caused by the recent storm, that was the instrumentality that resulted in the fall and injury. Dkt. No. 27, Pls.’ Mem. of Law at pp. 2-6. Further, Plaintiffs note that their expert meteorological evidence establishes that the ice in question must have existed for three days prior to the Plaintiff’s fall, thereby giving sufficient notice to the Defendants that they had a common law duty to take remedial action, which they negligently failed to do. Id. at pp. 6-8. II. LEGAL STANDARD FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate only where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party bears the burden to demonstrate through “pleadings, depositions, answers to interrogatories, and admissions on file, together with [ ] affidavits, if any,” that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The party seeking summary judgment bears the burden of informing the court of the basis for the motion and identifying those portions of the record that the moving party claims will demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat a motion for summary judgment, the non-movant must set out specific facts showing that there is a genuine issue for trial and cannot rest merely on allegations or denials of the facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case.”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). “[T]he trial court’s task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994). III. DISCUSSION Where jurisdiction is based upon diversity, the court applies the substantive law of the state where the negligence is alleged to have occurred. Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994). To establish a prima facie case of negligence under New York law, “a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 286 (2d Cir. 2006). A property owner has a duty to maintain its property in a reasonably safe condition in view of all the circumstances. Basso v. Miller, 40 N.Y.2d 233, 241 (1976). In the case at bar, therefore, Plaintiffs must establish that Defendants “created the condition which caused the accident, or that the defendant had actual or constructive notice of the condition which caused the fall.” Casiano v. Target Stores, 2009 WL 3246836, at *3 (E.D.N.Y. 2009) (citation omitted). For constructive notice, “a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.” Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837-38 (1986). Defendants maintain that they were under no duty to the Plaintiff because the incident occurred while a snowstorm was in progress. Under New York law, a property owner has no duty to remove snow and ice during the course of a storm, and generally must be given a reasonable amount of time to remedy the dangerous condition after the storm has ended. Hascup v. Hascup, 969 F. Supp. 851, 853 (N.D.N.Y. 1997); Amazon v. British Am. Dev. Corp., 216 A.D.2d 702, 704 (3d Dep’t 1995). The purpose of the doctrine is “to relieve the worker(s) of any obligation to shovel snow while continuing precipitation or high winds are simply recovering the walkways as fast as they are clean, thus rendering the effort fruitless.” Powell v. MLG Hillside Assocs., LP, 290 A.D.2d 345 (1stDep’t 2002). A defendant asserting the storm-in-progress doctrine at the summary judgment stage must show “prima facie entitlement to judgment based on that defense and, if that burden is met, the opponent of the motion must come forward with competent, admissible evidence, establishing the existence of a triable issue of fact.” Sanders v. Wal-Mart Stores, Inc., 9 A.D.3d 595 (3d Dep’t 2004). In the present case, Defendants have met their burden. The video provided to the Court establishes that the fall occurred during a snow event, and in fact that it was still lightly snowing at the time of the fall. A store employee confirms that it was lightly snowing at the time of the incident. Dkt. No. 24-6, Studt Dep. at pp. 48-49. Defendants have also submitted expert analysis of a licensed meteorologist, who concluded that there was a winter weather advisory in effect for January 16, 2018, that the total accumulation was 1.6 inches that day and, based upon examination of radar, there was light snow falling at the time the Plaintiff reports that he fell. Dkt. Nos. 24-9, Lombardo Aff’d, and 24-11, Report of Forensic Weather Consultants, LLC at pp. 17-18. Indeed, Plaintiffs’ own expert indicates that it was lightly snowing at the time of the incident, and it had been snowing since 1:00 a.m. that day. Dkt. No. 30, Wasula Aff’d at 22. Expert evidence such as this, based upon meteorological records, has been held by courts to be “especially persuasive.” Powell v. MLG Hillside Assocs., LP, 290 A.D.2d at 345. Mr. Schoonmaker’s claim that he could not see snow in the video shown to him at his deposition is insufficient to defeat this defense for several reasons. First, the testimony of the Plaintiff is belied by the video evidence presented on the Motion. That video shows the FedEx van with its wipers on, and snow lightly falling at the time Plaintiff arrived at the facility. Second, Mr. Schoonmaker testified at his deposition that he could not recall the weather conditions on the day in question. Richard Schoonmaker Dep. at p. 58. Third, Plaintiff’s assertion is contradicted by Plaintiff’s own expert. Fourth, even if there had been a lull in the storm at the time Plaintiff arrived at Starfire Systems, the expert proof establishes that the storm continued for a period of time thereafter. Wasula Aff’d at
