WALTER v. UNITED PARCEL SERVICE INC (2008)

 Plaintiff commenced this action seeking damages for injuries he sustained when he slipped and fell on snow and ice in the “parking lot/loading area” of property owned by defendant-third-party plaintiff (defendant).   Third-party defendant was the snow removal contractor for defendant's property.   Supreme Court properly denied that part of the motion of defendant for summary judgment dismissing the complaint against it.   In support thereof, defendant contended that it was not liable because there was a storm in progress, but defendant failed to meet its initial burden of establishing that plaintiff's injuries were caused by a storm in progress (cf. Brierley v. Great Lakes Motor Corp., 41 A.D.3d 1159, 1160, 837 N.Y.S.2d 451).   The meteorologist who stated in his supporting affidavit that a total of 12.3 inches of snow fell on the day of the accident “failed ․ to attach to his affidavit copies of the [National Climatic Data Center] records upon which he relied in forming his opinion, and thus his affidavit has no probative value” (Daniels v. Meyers, 50 A.D.3d 1613, 1614, 857 N.Y.S.2d 403;  see Schuster v. Dukarm, 38 A.D.3d 1358, 1359, 831 N.Y.S.2d 619).   Although those records were attached to the reply affidavit of the meteorologist, we do not consider reply papers in determining whether a defendant met its initial burden (see Miller v. Spall Dev. Corp., 45 A.D.3d 1297, 1298, 846 N.Y.S.2d 496;   Wonderling v. CSX Transp., Inc., 34 A.D.3d 1244, 1245, 824 N.Y.S.2d 839).

 Defendant also contended in support of its motion that it lacked constructive notice of the condition that caused plaintiff to fall, but we conclude that defendant failed to meet its initial burden with respect to that contention as well.   Defendant submitted plaintiff's deposition testimony in which plaintiff testified that he slipped on ice hidden under the accumulation of 1 to 1 1/212 inches of snow, but defendant submitted no evidence with respect to the time period in which that ice may have formed.   Thus, defendant's own submissions raise an issue of fact whether “ ‘the ice formed so close in time to the accident that [defendant] could not reasonably have been expected to notice and remedy the condition’ ” (Stalker v. Crestview Cadillac Corp., 284 A.D.2d 977, 978, 726 N.Y.S.2d 533).   Even assuming, arguendo, that defendant met its initial burden, we conclude that, by submitting the affidavit of a meteorologist with attached National Climatic Data Center records, plaintiff raised a triable issue of fact whether defendant had constructive notice of the allegedly dangerous condition (see Zemotel v. Jeld-Wen, Inc., 50 A.D.3d 1586, 1587, 857 N.Y.S.2d 847;  see generally Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-838, 501 N.Y.S.2d 646, 492 N.E.2d 774).

 We further conclude that the court properly denied that part of defendant's motion seeking, in the alternative, a conditional order of contractual indemnification against third-party defendant.   We note that, although defendant also sought common-law indemnification, it does not address that issue on appeal and thus is deemed to have abandoned it (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745).   With respect to contractual indemnification, the contract for snow removal services required third-party defendant to indemnify defendant only in the event that third-party defendant was negligent in the performance of the contract and, contrary to defendant's contention, there are triable issues of fact with respect thereto (see Anderson v. Jefferson-Utica Group, Inc., 26 A.D.3d 760, 761, 809 N.Y.S.2d 693;  Robinson v. City of New York, 22 A.D.3d 293, 294, 802 N.Y.S.2d 48;  Torella v. Benderson Dev. Co., 307 A.D.2d 727, 729, 763 N.Y.S.2d 876).

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

MEMORANDUM: