| Walter v United Parcel Serv., Inc. |
| 2008 NY Slip Op 08846 [56 AD3d 1187] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| George Walter, Respondent, v United Parcel Service, Inc.,Appellant and Third-Party Plaintiff-Appellant, et al., Defendants. United Parcel Service, Inc.,Third-Party Plaintiff-Appellant; Larry's Lawn Service, Inc., Doing Business as LB LandscapingCo., Third-Party Defendant-Respondent. |
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Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), enteredMarch 3, 2008 in a personal injury action. The order, among other things, denied that part of themotion of defendant-third-party plaintiff for summary judgment dismissing the complaint againstit.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen he slipped and fell on snow and ice in the "parking lot/loading area" of property owned bydefendant and third-party plaintiff (defendant). Third-party defendant was the snow removalcontractor for defendant's property. Supreme Court properly denied that part of the motion ofdefendant for summary judgment dismissing the complaint against it. In support thereof,defendant contended that it was not liable because there was a storm in progress, but defendantfailed to meet its initial burden of establishing that plaintiff's injuries were caused by a storm inprogress (cf. Brierley v GreatLakes Motor Corp., 41 AD3d 1159, 1160 [2007]). The meteorologist who stated in hissupporting affidavit that a total of 12.3 inches of snow fell on the day of the accident "failed. . . to attach to his affidavit copies of the [National Climatic Data Center] recordsupon which he relied in forming his opinion, and thus his affidavit has no probative value" (Daniels v Meyers, 50 AD3d 1613,1614 [2008]; see Schuster vDukarm, 38 AD3d 1358, 1359 [2007]). Although those records were attached to thereply affidavit of the meteorologist, we [*2]do not consider replypapers in determining whether a defendant met its initial burden (see Miller v Spall Dev. Corp., 45AD3d 1297, 1298 [2007]; Wonderling v CSX Transp., Inc., 34 AD3d 1244, 1245 [2006]).
Defendant also contended in support of its motion that it lacked constructive notice of thecondition that caused plaintiff to fall, but we conclude that defendant failed to meet its initialburden with respect to that contention as well. Defendant submitted plaintiff's depositiontestimony in which plaintiff testified that he slipped on ice hidden under the accumulation of 1 to1½ inches of snow, but defendant submitted no evidence with respect to the time period inwhich that ice may have formed. Thus, defendant's own submissions raise an issue of factwhether " 'the ice formed so close in time to the accident that [defendant] could not reasonablyhave been expected to notice and remedy the condition' " (Stalker v Crestview CadillacCorp., 284 AD2d 977, 978 [2001]). Even assuming, arguendo, that defendant met its initialburden, we conclude that, by submitting the affidavit of a meteorologist with attached NationalClimatic Data Center records, plaintiff raised a triable issue of fact whether defendant hadconstructive notice of the allegedly dangerous condition (see Zemotel v Jeld-Wen, Inc., 50 AD3d 1586, 1587 [2008]; seegenerally Gordon v American Museum of Natural History, 67 NY2d 836, 837-838 [1986]).
We further conclude that the court properly denied that part of defendant's motion seeking, inthe alternative, a conditional order of contractual indemnification against third-party defendant.We note that, although defendant also sought common-law indemnification, it does not addressthat issue on appeal and thus is deemed to have abandoned it (see Ciesinski v Town ofAurora, 202 AD2d 984 [1994]). With respect to contractual indemnification, the contract forsnow removal services required third-party defendant to indemnify defendant only in the eventthat third-party defendant was negligent in the performance of the contract and, contrary todefendant's contention, there are triable issues of fact with respect thereto (see Anderson v Jefferson-Utica Group,Inc., 26 AD3d 760, 761 [2006]; Robinson v City of New York, 22 AD3d 293, 294 [2005];Torella v Benderson Dev. Co., 307 AD2d 727, 729 [2003]). Present—Scudder,P.J., Martoche, Lunn, Peradotto and Green, JJ.