CHAPMAN v. PYRAMID COMPANY OF BUFFALO LLC LLC (2009)

 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 A.D.3d 1159, 1160, 837 N.Y.S.2d 451;  Camacho v. Garcia, 273 A.D.2d 835, 709 N.Y.S.2d 738).   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 plaintiff's fall (see Martin v. Wagner, 30 A.D.3d 733, 735, 816 N.Y.S.2d 243;  Parker v. Rust Plant Servs., Inc., 9 A.D.3d 671, 672-673, 780 N.Y.S.2d 230;  cf. Pacelli v. Pinsley, 267 A.D.2d 706, 707-708, 699 N.Y.S.2d 530).   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 A.D.3d 812, 866 N.Y.S.2d 289;  Blazynski v. A. Gareleck & Sons, Inc., 48 A.D.3d 1168, 1169, 852 N.Y.S.2d 500, lv. dismissed in part and denied in part 11 N.Y.3d 825, 868 N.Y.S.2d 593, 897 N.E.2d 1077).

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

MEMORANDUM: