| Verleni v City of Jamestown |
| 2009 NY Slip Op 06914 [66 AD3d 1359] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| Thomas Verleni, Appellant, v City of Jamestown, Defendant, andRodney L. Johnson et al., Respondents. |
—[*1] Jaeckle Fleischmann & Mugel, LLP, Buffalo (David G. Brock of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Chautauqua County (Timothy J. Walker, A.J.),entered September 2, 2008 in a personal injury action. The order granted the motion ofdefendants Rodney L. Johnson and Linda L. Johnson for summary judgment dismissing thecomplaint against them.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is denied and the complaint against defendants Rodney L. Johnson andLinda L. Johnson is reinstated.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen he allegedly slipped and fell on ice on the sidewalk in front of the home of Rodney L.Johnson and Linda L. Johnson (defendants). We agree with plaintiff that Supreme Court erred ingranting the motion of defendants seeking summary judgment dismissing the complaint againstthem on the ground that there was a storm in progress. In support of their motion, defendantssubmitted the deposition testimony of defendant husband in which he stated that there was "alight snowfall" and "a dusting of snow on the sidewalk" at the time of plaintiff's fall. Thattestimony and the remaining submissions of defendants in support of their motion areinsufficient to satisfy their burden of "establishing as a matter of law that 'plaintiff's injuries[were] sustained as the result of an icy condition occurring during an ongoing storm or for areasonable time thereafter' " (Korthas vU.S. Foodservice, Inc., 61 AD3d 1407, 1408 [2009], quoting Solazzo v New York City Tr. Auth., 6NY3d 734, 735 [2005]; see Powell v MLG Hillside Assoc., 290 AD2d 345, 345-346[2002]). Present—Hurlbutt, J.P., Centra, Fahey, Pine and Gorski, JJ.