Canario v. City of New York

246 A.D.2d 618, 667 N.Y.S.2d 304, 1998 N.Y. App. Div. LEXIS 607

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 1998
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated November 18, 1996, which granted the motion of the defendant City of New York, inter alia, for summary judgment dismissing the complaint and all cross claims insofar as asserted against it and the cross motion of the défendants Nicholas Foccillo and Kim Foccillo for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The plaintiff Michael Canario allegedly sustained injuries when he slipped and fell on ice. The plaintiffs subsequently commenced this action naming the City of New York and the plaintiffs’ next-door neighbors, Nicholas Foccillo and Kim Foccillo, as defendants. It is undisputed that on the day prior to the accident, it had started snowing and that earlier on the morning of the accident, the snow had turned to hail, which was still falling at the time of the accident. The Supreme Court therefore properly granted the motion and the cross motion for summary judgment dismissing the complaint and cross claims (see, Simmons v Metropolitan Life Ins. Co., 84 NY2d 972; Grillo v New York City Tr. Auth., 214 AD2d 648; Newsome v Cservak, 130 AD2d 637).

We decline to reach the plaintiffs’ contention that there exists a triable issue of fact as to whether the ice on which Mr. Canario fell was the result of an earlier storm as well as a second, related contention, which are raised by the plaintiffs for the first time on appeal (see, Murray v Palmer, 229 AD2d 377; Shelton v Shelton, 151 AD2d 659). Mangano, P. J., Copertino, Joy, Florio and Luciano, JJ., concur.