| Lester v Ackerman |
| 2011 NY Slip Op 01808 [82 AD3d 847] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Rita Lester, Respondent, v Rosina Ackerman et al.,Appellants. |
—[*1] Isaacson, Schiowitz & Korson, LLP, New York, N.Y. (Jeremy Schiowitz of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Knipel, J.), dated June 11, 2010, which denied the motion ofthe defendant Rosina Ackerman Revocable Trust for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the appeal by the defendant Rosina Ackerman is dismissed, as she is notaggrieved by the order appealed from (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144,156 [2010]); and it is further,
Ordered that the order is affirmed on the appeal by the defendant Rosina AckermanRevocable Trust; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The defendant Rosina Ackerman Revocable Trust (hereinafter the Trust), the owner of realproperty on which the subject accident allegedly occurred, failed to make a prima facie showingthat it was entitled to judgment as a matter of law dismissing the complaint insofar as assertedagainst it based on the "storm in progress" rule. Although the Trust submitted the affidavit of ameteorologist to support its contention that a winter storm was in progress at the time of thesubject slip-and-fall accident, it also submitted the plaintiff's deposition testimony, whichindicated that snow had fallen during the night prior to the accident, but that it was not snowingat the time of the accident. This conflicting evidence was insufficient to establish, as a matter oflaw, that there was a storm in progress at the time and location of the accident, and that theplaintiff slipped on snow or ice accumulated during an ongoing storm (see Wood v Schenectady Mun. Hous.Auth., 77 AD3d 1273 [2010]; Caldwell v S&S Levittown, LLC, 70 AD3d 881 [2010]; Verleni v City of Jamestown, 66 AD3d1359, 1360 [2009]; Daniels vMeyers, 50 AD3d 1613, 1614 [2008]; Lotenberg v Long Is. R.R., 34 AD3d 435 [2006]; Calix v New York City Tr. Auth., 14AD3d 583, 584 [2005]). Since the Trust did not sustain its prima facie burden, we need notreview the sufficiency of the papers submitted by the plaintiff in opposition (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; [*2]Caldwell v S&S Levittown, LLC, 70 AD3d at 882).
Accordingly, the Supreme Court properly denied the Trust's motion for summary judgmentdismissing the complaint insofar as asserted against it. Mastro, J.P., Skelos, Eng and Sgroi, JJ.,concur.