Opinion
13032 Index No. 302479/15 Case No. 2020-03685
02-04-2021
Richard MORALES, Plaintiff–Appellant, v. Alyce GROSS et al., Defendants–Respondents. [And a Third–Party Action]
Diamond and Diamond, LLC, Brooklyn (Stuart Diamond of counsel), for appellant. Varvaro, Cotter & Bender, White Plains (Stephen J. Cassels of counsel), for respondents.
Diamond and Diamond, LLC, Brooklyn (Stuart Diamond of counsel), for appellant.
Varvaro, Cotter & Bender, White Plains (Stephen J. Cassels of counsel), for respondents.
Kapnick, J.P., Mazzarelli, Moulton, Shulman, JJ.
Order, Supreme Court, Bronx County (Robert T. Johnson, J.), entered on or about June 25, 2020, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
In this action where plaintiff alleges that he was injured after he fell on a snowy or icy condition on defendants' driveway, defendants failed to meet their prima facie burden of establishing entitlement to judgment as a matter of law. The meteorologists' reports relied upon by defendants were not in admissible form (see Accardo v. Metro–North R.R., 103 A.D.3d 589, 589, 959 N.Y.S.2d 696 [1st Dept. 2013] ). The reports contain no jurat, stamp of a notary public, or any other indication that the experts were actually sworn ( id. ; Lillo–Arouca v. Masoud , 163 A.D.3d 646, 647, 79 N.Y.S.3d 651 [2d Dept. 2018] ; cf. Collins v. AA Trucking Renting Corp., 209 A.D.2d 363, 618 N.Y.S.2d 801 [1st Dept. 1994] ).
In any event, contrary to defendants' contention, the testimony of the parties alone did not establish that the snowstorm was still in progress at the time of the accident, and was therefore insufficient to avail them of the storm in progress defense (see generally Powell v. MLG Hillside Assoc., 290 A.D.2d 345, 345, 737 N.Y.S.2d 27 [1st Dept. 2002] ).