| Caldwell v S&S Levittown, LLC |
| 2010 NY Slip Op 01449 [70 AD3d 881] |
| February 16, 2010 |
| Appellate Division, Second Department |
| Wendy Caldwell, Appellant, et al., Plaintiff, v S&SLevittown, LLC, Defendant/Third-Party Plaintiff-Respondent. Melville Snow Contractors, Inc.,Third-Party Defendant-Respondent. (And a Fourth-Party Action.) |
—[*1] Martyn, Toher & Martyn, Mineola, N.Y. (Thomas M. Martyn of counsel), fordefendant/third-party plaintiff-respondent. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forthird-party defendant-respondent.
In an action to recover damages for personal injuries, etc., the plaintiff Wendy Caldwellappeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County(Mahon, J.), dated November 21, 2008, as, upon renewal, in effect, vacated so much of its priororder dated May 5, 2008, as denied that branch of the third-party defendant's motion which was,in effect, for summary judgment dismissing the complaint and that branch of the defendantthird-party plaintiff's cross motion which was for summary judgment dismissing the complaintand thereupon, granted those branches of the motion and cross motion.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and, upon renewal, so much of the order dated May 5, 2008, as denied that branch of thethird-party defendant's motion which was, in effect, for summary judgment dismissing thecomplaint and that branch of the defendant/third-party plaintiff's cross motion which was forsummary judgment dismissing the complaint is adhered to.
On January 27, 2004, at approximately 12:30 p.m., the plaintiff Wendy Caldwell (hereinafterthe plaintiff) allegedly slipped and fell on snow and/or ice in a parking lot located on thedefendant's premises as she was exiting her vehicle. Thereafter, the plaintiff and her husband,suing derivatively, commenced the present action against the owner of the premises, S&SLevittown, LLC (hereinafter S&S). The defendant subsequently commenced a third-party actionagainst Melville Snow Contractors, Inc. (hereinafter Melville), which was the contractor it hadretained to remove snow and ice from the premises.[*2]
After joinder of issue, Melville moved, inter alia, ineffect, for summary judgment dismissing the complaint based on the "storm in progress"doctrine, and S&S cross-moved, inter alia, for summary judgment dismissing the complaint onthe same ground.
S&S and Melville failed to establish, as a matter of law, that the plaintiff slipped and fell onsnow or ice that fell during the storm (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]). Thus, the sufficiency of the plaintiff's opposition papers need not beaddressed (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, uponrenewal, the Supreme Court should have adhered to its original determination denying thatbranch of Melville's motion which was, in effect, for summary judgment dismissing thecomplaint and that branch of S&S's cross motion which was for summary judgment dismissingthe complaint. Fisher, J.P., Miller, Eng and Hall, JJ., concur.