Baehre v. Sagamore Resort Hotel, Inc.

4 A.D.3d 810, 771 N.Y.S.2d 434, 2004 N.Y. App. Div. LEXIS 1477

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 2004
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered February 12, 2003. The order granted defendant’s motion for summary judgment dismissing the complaint in a personal injury action.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this negligence action to recover for injuries she sustained when she slipped and fell on a snow and ice covered walkway at defendant’s resort hotel. Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint. Defendant met its initial burden by establishing that plaintiffs fall occurred during a storm in progress (see e.g. Grau v Taxter Park Assoc., 283 AD2d 551 [2001], lv denied 96 NY2d 721 [2001]; Camacho v Garcia, 273 AD2d 835 [2000]; Siegel v Molino, 236 AD2d 879 [1997]), and plaintiff failed to raise an issue of fact whether the walkway was defective apart from the accumulation of snow and ice. The affidavit of plaintiffs expert “did not sufficiently identify any specific industry standard upon which he relied . . ., nor did [it] supply any specific statutory or . . . code violations” (Veccia v Clearmeadow Pistol Club, 300 AD2d 472, 472 [2002]). The affidavit was thus speculative and not sufficiently probative to defeat defendant’s motion for summary judgment (see id.; Cicero v Selden Assoc., 295 AD2d 391, 392 [2002]; see generally Romano v Stanley, 90 NY2d 444, 451-452 [1997]). Present—Wisner, J.P, Hurlbutt, Scudder, Kehoe and Hayes, JJ.