Opinion
1246 CA 17-00576.
11-09-2017
Jessica WROBEL, Plaintiff–Respondent, v. TOPS MARKETS, LLC, Defendant–Appellant.
Dixon & Hamilton, LLP, Getzville (Harry T. Dixon, Jr., of Counsel), for Defendant–Appellant. Vandette Penberthy LLP, Buffalo (James M. Vandette of Counsel), for Plaintiff–Respondent.
Dixon & Hamilton, LLP, Getzville (Harry T. Dixon, Jr., of Counsel), for Defendant–Appellant.
Vandette Penberthy LLP, Buffalo (James M. Vandette of Counsel), for Plaintiff–Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:
Plaintiff commenced this action to recover damages for injuries that she allegedly sustained when she slipped and fell on snow or ice in defendant's parking lot. Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint on the ground that there was a storm in progress inasmuch as defendant failed to meet its burden of establishing that plaintiff's injuries were caused by a storm in progress (see Walter v. United Parcel Serv., Inc., 56 A.D.3d 1187, 1187, 867 N.Y.S.2d 805 [4th Dept.2008] ; cf. Alvarado v. Wegmans Food Mkts., Inc., 134 A.D.3d 1440, 1441, 21 N.Y.S.3d 515 [4th Dept.2015] ). In support of its motion, defendant submitted the deposition testimony of plaintiff, who testified that it was not snowing at the time of the accident. Moreover, the opinions of defendant's expert meteorologist are at best conclusory and have "no evidentiary support in the record" ( DeJesus v. CEC Entertainment, Inc., 138 A.D.3d 1390, 1391, 30 N.Y.S.3d 418 [4th Dept.2016], lv. denied 28 N.Y.3d 906, 2016 WL 6432811 [2016] [internal quotation marks omitted] ). Inasmuch as defendant failed to meet its initial burden, the burden never shifted to plaintiff "to raise a triable issue of fact ‘whether the accident was caused by a slippery condition at the location where the plaintiff fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and that the defendant had actual or constructive notice of the preexisting condition’ " ( Quill v. Churchville–Chili Cent. Sch. Dist., 114 A.D.3d 1211, 1212, 979 N.Y.S.2d 756 [4th Dept.2014] ). Thus, the court properly denied defendant's motion without regard to the sufficiency of plaintiff's opposing papers (see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.