SALAMONE v. Canzone Plaster & Tile, Inc., et al., Defendants. (2009)

Michael SALAMONE, et al., Plaintiffs-Respondents, v. MIDLAND AVENUE OWNERS CORP., et al., Defendants-Appellants, Canzone Plaster & Tile, Inc., et al., Defendants.

Decided: October 06, 2009

SAXE, J.P., SWEENY, MOSKOWITZ, ACOSTA, RICHTER, JJ.

Thomas D. Hughes, New York (Richard C. Rubinstein of counsel), for appellants. Scarcella Law Offices, White Plains (M. Sean Duffy of counsel), for respondents.

Order, Supreme Court, Bronx County (Alan Saks, J.), entered August 21, 2008, which, inter alia, denied defendants-appellants' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The conflicting testimony of plaintiffs and defendants-appellants' building manager and the certified weather reports from weather stations in the areas around Yonkers, where the accident occurred, raise an issue of fact whether there was a “storm in progress” in Yonkers at the time of the accident (see Krause v. City of New York, 152 A.D.2d 473 [1989], lv denied 76 N.Y.2d 714 [1990] ).

We have considered defendants-appellants' argument as to the admissibility of plaintiffs' expert's affidavit and find it unavailing.

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