Schuster v. Dukarm

38 A.D.3d 1358, 831 N.Y.S.2d 619

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 2007
• Status: Published

Opinions

Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered January 4, 2006 in a personal injury action. The order and judgment granted defendants’ motion for summary judgment dismissing the complaint.

It is hereby ordered that the order and judgment so appealed from be and the same hereby is reversed on the law without costs, the motion is denied and the complaint is reinstated.

Memorandum:

Plaintiff commenced this action seeking damages for injuries she sustained when she slipped and fell on ice and snow that had accumulated on the front walk of the apartment building owned by defendants. Supreme Court erred in granting defendants’ motion for summary judgment dismissing the complaint on the ground that there was a storm in progress. Defendants did not submit the meteorological data upon which their expert meteorologist relied in support of his opinion that there was a storm in progress when plaintiff fell. “Where [an] expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation, . . . the [expert’s] opinion should be given no probative force” (Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]).

Even assuming, arguendo, that defendants met their initial burden, we conclude that plaintiff raised a triable issue of fact whether the storm had abated and whether defendants had a reasonable opportunity to clear accumulated snow from their parking lot before plaintiff fell (see Grzankowski v Southgate Plaza, 267 AD2d 1055 [1999]; see also Williams v Scruggs Community Health Care Ctr., 255 AD2d 982 [1998]). In addition, plaintiff raised an issue of fact whether she slipped on ice that had accumulated prior to the storm and thus whether “the ice was a preexisting hazard and was not created by the storm in progress so as to defeat defendants’ motion” (Pacelli v Pinsley, 267 AD2d 706, 707 [1999]).

All concur except Hurlbutt, J.E, and Smith, J, who dissent and vote to affirm in the following memorandum.