Opinion
2013-11-8
Brenda HYDE and Michael Hyde, Individually and as Husband and Wife, Plaintiffs–Appellants, v. TRANSCONTINENT RECORD SALES, INC., Leonard Silver, Leon Tringali, Doing Business as Leon Studio One School of Hair Design and Career Training Center, Defendants–Respondents, et al., Defendant.
Andrews, Bernstein, Maranto & Nicotra, PLLC, Buffalo (Andrew J. Connelly of Counsel), for Plaintiffs–Appellants. Damon Morey LLP, Buffalo (Amy Archer Flaherty Of Counsel), for Defendants–Respondents.
Andrews, Bernstein, Maranto & Nicotra, PLLC, Buffalo (Andrew J. Connelly of Counsel), for Plaintiffs–Appellants. Damon Morey LLP, Buffalo (Amy Archer Flaherty Of Counsel), for Defendants–Respondents.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, SCONIERS AND WHALEN, JJ.
MEMORANDUM:
Plaintiffs, individually and as husband and wife, commenced this action to recover damages for injuries sustained by Brenda Hyde (plaintiff) after she slipped and fell on snow or ice in the parking lot of the building of defendants-respondents (defendants). Contrary to plaintiffs' contention, Supreme Court properly granted defendants' motion for summary judgment dismissing the amended complaint against them. Defendants “established their entitlement to judgment as a matter of law on the issue whether plaintiff's fall occurred while a storm was in progress or within a reasonable time thereafter” ( Santerre v. Golub Corp., 11 A.D.3d 945, 947, 782 N.Y.S.2d 891;see Baia v. Allright Parking Buffalo, Inc., 27 A.D.3d 1153, 1153–1154, 811 N.Y.S.2d 843;Camacho v. Garcia, 273 A.D.2d 835, 835, 709 N.Y.S.2d 738), and plaintiffs failed to raise a triable issue of fact in opposition ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Plaintiffs' claim that defendants created or exacerbated the hazard by shoveling but not salting the area in question was supported by only hearsay statements of defendants' employee and thus was insufficient to raise a triable issue of fact ( see Candela v. City of New York, 8 A.D.3d 45, 47, 778 N.Y.S.2d 31;see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). Contrary to plaintiffs' contention, they did not establish that defendants' employee, who allegedly stated that he had shoveled but not salted the area in which the accident occurred, had the authority to speak on behalf of defendants. Plaintiffs therefore failed to establish that the employee's statements fell within an exception to the hearsay rule as “an admission binding on [defendants]” ( Tyrrell v. Wal–Mart Stores, 97 N.Y.2d 650, 652, 737 N.Y.S.2d 43, 762 N.E.2d 921;see generally Reed v. McCord, 160 N.Y. 330, 341, 54 N.E. 737).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.