| Chapman v Pyramid Co. of Buffalo |
| 2009 NY Slip Op 04579 [63 AD3d 1623] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| Donna M. Chapman et al., Appellants, v Pyramid Company ofBuffalo et al., Respondents. |
—[*1] Rodgers Law Firm, Buffalo (Mark C. Rodgers of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), enteredDecember 3, 2007 in a personal injury action. The order granted the motion of defendants forsummary judgment and dismissed 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 byDonna M. Chapman (plaintiff) when she allegedly slipped and fell on snow and ice in theparking lot of a mall. Supreme Court properly granted defendants' motion seeking summaryjudgment dismissing the complaint. Contrary to plaintiffs' contention, defendants met their initialburden by submitting evidence establishing that there was a storm in progress at the time of theaccident (see Brierley v Great LakesMotor Corp., 41 AD3d 1159, 1160 [2007]; Camacho v Garcia, 273 AD2d 835[2000]). In opposition to the motion, plaintiffs failed to raise a triable issue of fact with respect totheir allegation that the ice that caused the accident existed prior to the storm, and whether theprecipitation from the ongoing storm was a proximate cause of plaintiff's fall (see Martin v Wagner, 30 AD3d733, 735 [2006]; Parker v RustPlant Servs., Inc., 9 AD3d 671, 672-673 [2004]; cf. Pacelli v Pinsley, 267 AD2d706, 707-708 [1999]). Plaintiffs' contention that the court erred in granting the motion becausedefendants failed to attach a copy of the pleadings to the motion papers is raised for the first timeon appeal and thus is not properly before us (see Provident Bank v Giannasca, 55 AD3d 812 [2008]; Blazynski v A. Gareleck & Sons, Inc.,48 AD3d 1168, 1169 [2008], lv dismissed in part and denied in part 11 NY3d 825[2008]). Present—Scudder, P.J., Fahey, Peradotto, Carni and Green, JJ.