Chapman v. Pyramid Co. of Buffalo

63 A.D.3d 1623, 881 N.Y.S.2d 1623

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 2009
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered December 3, 2007 in a personal injury action. The order granted the motion of defendants for summary judgment and dismissed the complaint.

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

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Donna M. Chapman (plaintiff) when she allegedly slipped and fell on snow and ice in the parking lot of a mall. Supreme Court properly granted defendants’ motion seeking summary judgment dismissing the complaint. Contrary to plaintiffs’ contention, defendants met their initial burden by submitting evidence establishing that there was a storm in progress at the time of the accident (see Brierley v Great Lakes Motor Corp., 41 AD3d 1159, 1160 [2007]; Camacho v Garcia, 273 AD2d 835 [2000]). In opposition to the motion, plaintiffs failed to raise a triable issue of fact with respect to their allegation that the ice that caused the accident existed prior to the storm, and whether the precipitation from the ongoing storm was a proximate cause of plaintiffs fall (see Martin v Wagner, 30 AD3d 733, 735 [2006]; Parker v Rust Plant Servs., Inc., 9 AD3d 671, 672-673 [2004]; cf. Pacelli v Pinsley, 267 AD2d 706, 707-708 [1999]). Plaintiffs’ contention that the court erred in granting the motion because defendants failed to attach a copy of the pleadings to the motion papers is raised for the first time on appeal and thus is not properly before us (see Provident Bank v Giannasca, 55 AD3d 812 [2008]; Blazynski v A. Gareleck & Sons, Inc., 48 AD3d 1168, 1169 [2008], lv dismissed in part and denied in part 11 NY3d 825 [2008]). Present—Scudder, PJ., Fahey, Peradotto, Garni and Green, JJ.