Opinion
1388 CA 18–01088
12-21-2018
Patricia M. SCHULT, Plaintiff–Respondent, v. PYRAMID WALDEN COMPANY, L.P., Defendant–Appellant, et al., Defendant.
GOLDBERG SEGALLA LLP, ROCHESTER (RAUL E. MARTINEZ OF COUNSEL), FOR DEFENDANT–APPELLANT. CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
GOLDBERG SEGALLA LLP, ROCHESTER (RAUL E. MARTINEZ OF COUNSEL), FOR DEFENDANT–APPELLANT.
CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking to recover damages for injuries that she allegedly sustained when she slipped and fell on snow in the parking lot of a shopping mall owned and operated by Pyramid Walden Company, L.P. (defendant). Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint on the ground that there was a storm in progress inasmuch as defendant failed to meet its prima facie burden of establishing that plaintiff's injuries were caused by a storm in progress (see Wrobel v. Tops Mkts., LLC, 155 A.D.3d 1591, 1592, 63 N.Y.S.3d 633 [4th Dept. 2017] ; cf. Sheldon v. Henderson & Johnson Co., Inc., 75 A.D.3d 1155, 1156, 906 N.Y.S.2d 413 [4th Dept. 2010] ). Defendant submitted the deposition testimony of plaintiff, who testified that it was snowing at approximately 2:30 p.m. when she slipped and fell on approximately five inches of snow in the parking lot. Defendant, however, also submitted the testimony of plaintiff's husband, who testified that it stopped snowing sometime during the preceding two-hour period, while he and plaintiff were shopping. The affidavit of defendant's expert meteorologist and the data upon which he relied were insufficient to establish that it was snowing after 12:54 p.m. at the location of the accident (see Smith v. United Ref. Co. of Pennsylvania, 148 A.D.3d 1733, 1733–1734, 52 N.Y.S.3d 757 [4th Dept. 2017] ).
Inasmuch as defendant failed to meet its burden, the court properly denied its motion without regard to the sufficiency of plaintiff's opposing papers (see Wrobel, 155 A.D.3d at 1592, 63 N.Y.S.3d 633 ; see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).