KORTHAS v. FOODSERVICE INC (2009)

Supreme Court, Appellate Division, Fourth Department, New York.

James KORTHAS and Christine Korthas, Plaintiffs-Respondents, v. U.S. FOODSERVICE, INC., doing business as U.S. Foodservice of Buffalo, Inc., Defendant-Appellant.

Decided: April 24, 2009

PRESENT: HURLBUTT, J.P., PERADOTTO, CARNI, GREEN, AND PINE, JJ.

Hiscock & Barclay, LLP, Syracuse (Alan R. Peterman of Counsel), for Defendant-Appellant. Lynn Law Firm, LLP, Syracuse (Patricia A. Lynn-Ford of Counsel), for Plaintiffs-Respondents.

Plaintiffs commenced this action seeking damages for injuries sustained by James Korthas (plaintiff) when he slipped and fell on an icy walkway leading to the receiving office at defendant's warehouse facility. Supreme Court properly denied defendant's motion seeking summary judgment dismissing the complaint on the ground that there was a storm in progress at the time of the accident. Defendant failed to meet its burden of establishing as a matter of law that “plaintiff's injuries [were] sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter” (Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 735, 810 N.Y.S.2d 121, 843 N.E.2d 748). We do not consider the affidavit of defendant's expert meteorologist in determining whether defendant met its initial burden because that affidavit was submitted in reply to the affidavit of plaintiffs' expert meteorologist (see Walter v. United Parcel Serv., Inc., 56 A.D.3d 1187, 1188, 867 N.Y.S.2d 805).

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

MEMORANDUM:

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