Summary
noting that the defendant met its initial burden of demonstrating that it did not have actual or constructive notice of the icy condition, as the patch of black ice was not “visible and apparent”
Summary of this case from Bryndle v. Boulevard Towers, II, LLCOpinion
2012-02-10
Gordon LILLIE and Joyce Lillie, Plaintiffs–Respondents–Appellants, v. WILMORITE, INC., doing Business as Greece Ridge Center, Defendant–Appellant–Respondent.
Trevett Cristo Salzer & Andolina P.C., Rochester (Valerie L. Barbic of counsel), for Defendant–Appellant–Respondent. Kammholz Messina, LLP, Victor (Charles D. Steinman of counsel), for Plaintiffs–Respondents–Appellants.
Trevett Cristo Salzer & Andolina P.C., Rochester (Valerie L. Barbic of counsel), for Defendant–Appellant–Respondent. Kammholz Messina, LLP, Victor (Charles D. Steinman of counsel), for Plaintiffs–Respondents–Appellants.
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND MARTOCHE, JJ.
MEMORANDUM:
Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Gordon Lillie when he slipped and fell on a patch of black ice in the parking lot of the Mall at Greece Ridge Center (mall). Defendant, the mall's property management company, moved for summary judgment dismissing the complaint on the ground that it did not have actual or constructive notice of the ice upon which plaintiff slipped and fell. We agree with defendant on its appeal that Supreme Court erred in denying the motion. Defendant met its initial burden of demonstrating that it had neither actual notice of the icy condition in question nor constructive notice thereof, inasmuch as the patch of black ice was not “visible and apparent,” and plaintiffs failed to raise a triable issue of fact in opposition ( Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774; see Phillips v. Henry B'S, Inc., 85 A.D.3d 1665, 1666, 925 N.Y.S.2d 770; Mullaney v. Royalty Props., LLC, 81 A.D.3d 1312, 916 N.Y.S.2d 545).
In addition, plaintiffs' cross appeal must be dismissed because they are not aggrieved by the judgment and order denying defendant's motion ( see generally Town of Massena v. Niagara Mohawk Power Corp., 45 N.Y.2d 482, 488, 410 N.Y.S.2d 276, 382 N.E.2d 1139). To the extent that plaintiffs contend as an alternative ground for affirmance that their meteorologist's expert affidavit was sufficient to raise a triable issue of fact and that the court erred in disregarding it ( see generally Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545–546, 470 N.Y.S.2d 564, 458 N.E.2d 1241), we reject that contention. The climatological data upon which the meteorologist based his opinions was not submitted therewith, and thus the affidavit lacked an adequate factual foundation and was of no probative value ( see Walter v. United Parcel Serv., Inc., 56 A.D.3d 1187, 867 N.Y.S.2d 805; Schuster v. Dukarm, 38 A.D.3d 1358, 1359, 831 N.Y.S.2d 619; see generally Romano v. Stanley, 90 N.Y.2d 444, 452, 661 N.Y.S.2d 589, 684 N.E.2d 19). In any event, the expert's opinion would not change our determination herein ( cf. Zemotel v. Jeld–Wen, Inc., 50 A.D.3d 1586, 857 N.Y.S.2d 847).
It is hereby ORDERED that said cross appeal is unanimously dismissed, the judgment and order is reversed on the law without costs, the motion is granted, and the complaint is dismissed.