Opinion
No. 787 CA 08-01909.
June 5, 2009.
Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered December 3, 2007 in a personal injury action. The order granted the motion of defendants for summary judgment and dismissed the complaint.
LAWRENCE A. SCHULZ, ORCHARD PARK, FOR plaintiff's-APPELLANTS.
RODGERS LAW FIRM, BUFFALO (MARK C. RODGERS OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Present: Scudder, P.J., Fahey, Peradotto, Carni and Green, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Donna M. Chapman (plaintiff) when she allegedly slipped and fell on snow and ice in the parking lot of a mall. Supreme Court properly granted defendants' motion seeking summary judgment dismissing the complaint. Contrary to plaintiffs' contention, defendants met their initial burden by submitting evidence establishing that there was a storm in progress at the time of the accident ( see Brierley v Great Lakes Motor Corp., 41 AD3d 1159, 1160; Camacho v Garcia, 273 AD2d 835). In opposition to the motion, plaintiffs failed to raise a triable issue of fact with respect to their allegation that the ice that caused the accident existed prior to the storm, and whether the precipitation from the ongoing storm was a proximate cause of plaintiffs fall ( see Martin v Wagner, 30 AD3d 733, 735; Parker v Rust Plant Servs., Inc., 9 AD3d 671, 672-673; cf. Pacelli v Pinsley, 267 AD2d 706, 707-708). Plaintiffs' contention that the court erred in granting the motion because defendants failed to attach a copy of the pleadings to the motion papers is raised for the first time on appeal and thus is not properly before us ( see Provident Bank v Giannasca, 55 AD3d 812; Blazynski v A. Gareleck Sons, Inc., 48 AD3d 1168, 1169, lv dismissed in part and denied in part 11 NY3d 825).