| Korthas v U.S. Foodservice, Inc. |
| 2009 NY Slip Op 03303 [61 AD3d 1407] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| James Korthas et al., Respondents, v U.S. Foodservice, Inc., DoingBusiness as U.S. Foodservice of Buffalo, Inc., Appellant. |
—[*1] Lynn Law Firm, LLP, Syracuse (Patricia A. Lynn-Ford of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Oswego County (James W. McCarthy, A.J.),entered July 7, 2008 in a personal injury action. The order denied the motion of defendant forsummary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byJames Korthas (plaintiff) when he slipped and fell on an icy walkway leading to the receivingoffice at defendant's warehouse facility. Supreme Court properly denied defendant's motionseeking summary judgment dismissing the complaint on the ground that there was a storm inprogress at the time of the accident. Defendant failed to meet its burden of establishing as amatter of law that "plaintiff's injuries [were] sustained as the result of an icy condition occurringduring an ongoing storm or for a reasonable time thereafter" (Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]). Wedo not consider the affidavit of defendant's expert meteorologist in determining whetherdefendant met its initial burden because that affidavit was submitted in reply to the affidavit ofplaintiffs' expert meteorologist (seeWalter v United Parcel Serv., Inc., 56 AD3d 1187, 1188 [2008]).Present—Hurlbutt, J.P., Peradotto, Carni, Green and Pine, JJ.