| Daniels v Meyers |
| 2008 NY Slip Op 03912 [50 AD3d 1613] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| George Daniels, Appellant, v Laverne M. Meyers, Doing Businessas McDonald's Tac Mac and as McDonald's, Respondent. |
—[*1] Damon & Morey LLP, Buffalo (Brian A. Birenbach of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Chautauqua County (Timothy J. Walker, J.),entered May 14, 2007 in a personal injury action. The order granted defendant's motion forsummary judgment and dismissed the complaint.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is denied and the complaint is reinstated.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen he slipped and fell in the parking lot of defendant's restaurant. Supreme Court erred ingranting defendant's motion for summary judgment dismissing the complaint on the ground thatthere was a storm in progress. Defendant failed to meet her burden on the motion of establishingas a matter of law that "plaintiff's injuries [were] sustained as the result of an icy conditionoccurring during an ongoing storm or for a reasonable time thereafter" (Solazzo v New York City Tr. Auth., 6NY3d 734, 735 [2005]; cf. Baia vAllright Parking Buffalo, Inc., 27 AD3d 1153 [2006]). In support of her motion,defendant submitted the affidavit of a meteorologist, who stated that the temperature in the areaof defendant's restaurant dropped over the course of the day of the accident and that the rainchanged to snow, which continued to fall through the time of the accident. The expert failed,however, to attach to his affidavit copies of the records upon which he relied in forming hisopinion, and thus his affidavit has no probative value (see Schuster v Dukarm, 38 AD3d 1358, 1359 [2007]). Defendantalso submitted the deposition testimony of plaintiff, who testified that it was not snowing at thetime of the accident. Thus, we conclude that plaintiff's deposition testimony raises "a triable issueof fact whether the [alleged] storm had abated and whether defendant[ ] had a reasonableopportunity to clear accumulated snow from [her] parking lot before plaintiff fell" (id.;see Stalker v Crestview Cadillac Corp., 284 AD2d 977 [2001]; see also Conklin v Ulm, 41 AD3d1290, 1291-1292 [2007]). Present—Hurlbutt, J.P., Smith, Fahey, Green and Pine, JJ.