| Lillie v Wilmorite, Inc. |
| 2012 NY Slip Op 01011 [92 AD3d 1221] |
| February 10, 2012 |
| Appellate Division, Fourth Department |
| Gordon Lillie et al., Respondents-Appellants, v Wilmorite,Inc., Doing Business as Greece Ridge Center, Appellant-Respondent. |
—[*1] Kammholz Messina, LLP, Victor (Charles D. Steinman of counsel), forplaintiffs-respondents-appellants.
Appeal and cross appeal from a judgment and order (one paper) of the Supreme Court,Monroe County (John J. Ark, J.), entered December 7, 2010 in a personal injury action. Thejudgment and order denied the motion of defendant for summary judgment dismissing thecomplaint.
It is hereby ordered that said cross appeal is unanimously dismissed, the judgment and orderis reversed on the law without costs, the motion is granted, and the complaint is dismissed.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byplaintiff Gordon Lillie when he slipped and fell on a patch of black ice in the parking lot of theMall at Greece Ridge Center (mall). Defendant, the mall's property management company,moved for summary judgment dismissing the complaint on the ground that it did not have actualor constructive notice of the ice upon which plaintiff slipped and fell. We agree with defendanton its appeal that Supreme Court erred in denying the motion. Defendant met its initial burden ofdemonstrating that it had neither actual notice of the icy condition in question nor constructivenotice thereof, inasmuch as the patch of black ice was not "visible and apparent," and plaintiffsfailed to raise a triable issue of fact in opposition (Gordon v American Museum of NaturalHistory, 67 NY2d 836, 837 [1986]; see Phillips v Henry B'S, Inc., 85 AD3d 1665, 1666 [2011]; Mullaney v Royalty Props., LLC, 81AD3d 1312 [2011]).
In addition, plaintiffs' cross appeal must be dismissed because they are not aggrieved by thejudgment and order denying defendant's motion (see generally Town of Massena v NiagaraMohawk Power Corp., 45 NY2d 482, 488 [1978]). To the extent that plaintiffs contend as analternative ground for affirmance that their meteorologist's expert affidavit was sufficient to raisea triable issue of fact and that the court erred in disregarding it (see generally Parochial BusSys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983]), we reject thatcontention. The climatological data upon which the meteorologist based his opinions was notsubmitted therewith, and thus the affidavit lacked an adequate factual foundation and was of noprobative value (see Walter v [*2]United Parcel Serv., Inc., 56 AD3d 1187 [2008]; Schuster v Dukarm, 38 AD3d1358, 1359 [2007]; see generally Romano v Stanley, 90 NY2d 444, 452 [1997]). Inany event, the expert's opinion would not change our determination herein (cf. Zemotel v Jeld-Wen, Inc., 50 AD3d1586 [2008]). Present—Centra, J.P., Fahey, Peradotto, Carni and Martoche, JJ.