In Blair v Loduca, 164 AD3d 637, 638-40 [2d Dept 2018], the Second Department considered the argument made by the defendant-attorney sued for legal malpractice that the plaintiff could not establish liability because he could not prove the underlying action.
“ To establish the required element of causation in a legal malpractice action, ‘ a plaintiff must show that he or she would have prevailed in the underlying action … but for the lawyer’s negligence ’ ” (Balan v. Rooney, 152 A.D.3d 733, 733, 61 N.Y.S.3d 29, quoting Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; see Detoni v. McMinkens, 147 A.D.3d 1018, 48 N.Y.S.3d 208). The only issue raised in the defendants’ motion for summary judgment was whether the plaintiff could have prevailed in the underlying action against the property owner.
In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly *639 dangerous or defective condition nor had actual or constructive notice of its existence (see Martino v. Patmar Props., Inc., 123 A.D.3d 890, 890, 999 N.Y.S.2d 449; Kruger v. Donzelli Realty Corp., 111 A.D.3d 897, 975 N.Y.S.2d 689; Smith v. Christ’s First Presbyt. Church of Hempstead, 93 A.D.3d 839, 941 N.Y.S.2d 211; Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 925 N.Y.S.2d 607). “ Under the so-called ‘ storm in progress ’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm ” (Marchese v. Skenderi, 51 A.D.3d 642, 642, 856 N.Y.S.2d 680; see Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 810 N.Y.S.2d 121, 843 N.E.2d 748; Dumela–Felix v. FGP W. St., LLC, 135 A.D.3d 809, 810, 22 N.Y.S.3d 896; McCurdy v. Kyma Holdings, LLC, 109 A.D.3d 799, 799, 971 N.Y.S.2d 137; Smith v. Christ’s First Presbyt. Church of Hempstead, 93 A.D.3d 839, 840, 941 N.Y.S.2d 211; Weller v. Paul, 91 A.D.3d 945, 947, 938 N.Y.S.2d 152; Mazzella v. City of New York, 72 A.D.3d 755, 756, 899 N.Y.S.2d 291). If a storm is ongoing, and a property owner elects to remove snow, the owner must do so with reasonable care or it could be held liable for creating a hazardous condition or exacerbating a natural hazard created by the storm (see Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d 1177, 944 N.Y.S.2d 640; Petrocelli v. Marrelli Dev. Corp., 31 A.D.3d 623, 817 N.Y.S.2d 913; Salvanti v. Sunset Indus. Park Assoc., 27 A.D.3d 546, 813 N.Y.S.2d 110; Chaudhry v. East Buffet & Rest., 24 A.D.3d 493, 808 N.Y.S.2d 239). In such an instance, that property owner, if moving for summary judgment in a slip-and-fall case, must demonstrate in support of his or her motion that the snow removal efforts he or she undertook neither created nor exacerbated the allegedly hazardous condition which caused the injured plaintiff to fall (see Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d at 1177, 944 N.Y.S.2d 640).
In support of their motion for summary judgment dismissing the complaint in this action, the defendants submitted the plaintiff’s deposition testimony, the deposition testimony of the building’s doorman, the affidavit of a meteorologist, and certified climatological data. These submissions demonstrated that a storm was in progress at the time of the accident, that there was no preexisting ice on the ground when the storm commenced, and that the property owner did not create or exacerbate the allegedly dangerous condition created by the storm in progress (see Aronov v. St. Vincent’s Hous. Dev. Fund Co., Inc., 145 A.D.3d 648, 649, 43 N.Y.S.3d 99; **135 Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d at 1177, 944 N.Y.S.2d 640; Ali v. Village of Pleasantville, 95 A.D.3d 796, 797, 943 N.Y.S.2d 582). Since the defendants made a prima facie showing that the storm in progress rule applied *640 to the underlying action, the burden shifted to the plaintiff to show that something other than the precipitation from the storm in progress caused the accident (see Baker v. St. Christopher’s Inn, Inc., 138 A.D.3d 652, 653, 29 N.Y.S.3d 439; Burniston v. Ranric Enters. Corp., 134 A.D.3d 973, 974, 21 N.Y.S.3d 694; Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 877–878, 925 N.Y.S.2d 607; Alers v. La Bonne Vie Org., 54 A.D.3d 698, 699, 863 N.Y.S.2d 750). The plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint because the plaintiff could not have prevailed in the underlying action against the property owner (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Balan v. Rooney, 152 A.D.3d at 733, 61 N.Y.S.3d 29; Detoni v. McMinkens, 147 A.D.3d at 1018, 48 N.Y.S.3d 208).
R. A. Klass
Your Court Street Lawyer