| Perez v Canale |
| 2008 NY Slip Op 03312 [50 AD3d 437] |
| April 15, 2008 |
| Appellate Division, First Department |
| Enso Perez, Appellant, v Amelia Canale et al., Defendants,and Atlantic Development Group, LLC, et al., Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York (Patrick J. Lawless ofcounsel), for respondents.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered June 19, 2007, which,insofar as appealed from as limited by the briefs, granted the motion of defendants AtlanticDevelopment Group, LLC, Sagamore Street Associates, L.P., Birchall Avenue, L.P., andKnickerbocker Management, LLC for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
Defendants established a prima facie entitlement to summary judgment in this action whereplaintiff was injured when he allegedly slipped and fell on snow and ice while traversing acement walkway leading to a building owned by Sagamore and managed by Knickerbocker. Theclimatological data relied upon by defendants' expert meteorologist was prima facie evidence ofthe facts stated therein (CPLR 4528), and the expert permissibly concluded that due totemperatures that were well above freezing in the 12 hours prior to plaintiff's fall, it would havebeen impossible for there to have been a precipitation-related ice or snow accumulation in thevicinity of plaintiff's fall. Contrary to plaintiff's contention, it was not speculative for defendants'qualified expert to conclude that the temperatures were at levels that would have caused meltingon the days prior to and of the accident (compare Neidert v Austin S. Edgar, Inc., 204AD2d 1030 [1994]).
The affidavit of plaintiff's friend does not raise a triable issue of material fact, in the face ofthe evidence that ice could not have been present on the walkway at the time of the accident(see Leo v Mt. St. Michael Academy, 272 AD2d 145, 146 [2000]). The court alsoproperly [*2]discounted plaintiff's photographs taken the day afterthe accident, where the photos were not of the accident location. Concur—Lippman, P.J.,Tom, Williams and Acosta, JJ.