Opinion
CA 03-00993.
February 11, 2004.
Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered February 12, 2003. The order granted defendant's motion for summary judgment dismissing the complaint in a personal injury action.
CELLINO BARNES, P.C., BUFFALO (JASON H. STERNE OF COUNSEL), FOR PLAINTIFF-APPELLANT.
HURWITZ FINE, P.C., BUFFALO (DAN D. KOHANE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Before: PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this negligence action to recover for injuries she sustained when she slipped and fell on a snow and ice covered walkway at defendant's resort hotel. Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint. Defendant met its initial burden by establishing that plaintiff's fall occurred during a storm in progress ( see e.g. Grau v. Taxter Park Assoc., 283 A.D.2d 551, lv denied 96 N.Y.2d 721; Camacho v. Garcia, 273 A.D.2d 835; Siegel v. Molino, 236 A.D.2d 879), and plaintiff failed to raise an issue of fact whether the walkway was defective apart from the accumulation of snow and ice. The affidavit of plaintiff's expert "did not sufficiently identify any specific industry standard upon which he relied . . ., nor did [it] supply any specific statutory or . . . code violations" ( Veccia v. Clearmeadow Pistol Club, 300 A.D.2d 472, 472). The affidavit was thus speculative and not sufficiently probative to defeat defendant's motion for summary judgment ( see id.; Cicero v. Selden Assoc., 295 A.D.2d 391, 392; see generally Romano v. Stanley, 90 N.Y.2d 444, 451-452).