Opinion
January 26, 1998
Appeal from the Supreme Court, Richmond County (Sangiorgio, J.).
Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
The plaintiff Michael Canario allegedly sustained injuries when he slipped and fell on ice. The plaintiffs subsequently commenced this action naming the City of New York and the plaintiffs' next-door neighbors, Nicholas Foccillo and Kim Foccillo, as defendants. It is undisputed that on the day prior to the accident, it had started snowing and that earlier on the morning of the accident, the snow had turned to hail, which was still falling at the time of the accident. The Supreme Court therefore properly granted the motion and the cross motion for summary judgment dismissing the complaint and cross claims ( see, Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972; Grillo v. New York City Tr. Auth., 214 A.D.2d 648; Newsome v. Cservak, 130 A.D.2d 637).
We decline to reach the plaintiffs' contention that there exists a triable issue of fact as to whether the ice on which Mr. Canario fell was the result of an earlier storm as well as a second, related contention, which are raised by the plaintiffs for the first time on appeal ( see, Murray v. Palmer, 229 A.D.2d 377; Shelton v. Shelton, 151 A.D.2d 659).
Mangano, P.J., Copertino, Joy, Florio and Luciano, JJ., concur.