SWIMM v. BRATT (2005)

 Plaintiffs commenced this action seeking damages for personal injuries sustained by Marcus J. Swimm (plaintiff) when he slipped and fell on ice that had accumulated in defendant's driveway.   Defendant moved for summary judgment dismissing the complaint or, in the alternative, for bifurcation of the trial.   We conclude that Supreme Court properly denied defendant's motion.   Assuming, arguendo, that defendant met his burden of establishing that plaintiff fell during a storm in progress (see Baehre v. Sagamore Resort Hotel, 4 A.D.3d 810, 811, 771 N.Y.S.2d 434;  Williams v. Geneva B. Scruggs Community Health Care Ctr., 255 A.D.2d 982, 680 N.Y.S.2d 771), we conclude that plaintiffs raised a triable issue of fact whether plaintiff slipped on ice that had accumulated prior to the storm (see Pacelli v. Pinsley, 267 A.D.2d 706, 707-708, 699 N.Y.S.2d 530;  cf. Bertram v. SV Danco Corp., 300 A.D.2d 1108, 1109, 751 N.Y.S.2d 815;  Stalker v. Crestview Cadillac Corp., 284 A.D.2d 977, 978, 726 N.Y.S.2d 533).

 Contrary to the contention of defendant, he did not meet his initial burden of establishing that a dangerous condition did not exist or that he lacked notice of it.   It is well established that “[a] moving party must affirmatively [demonstrate] the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof” (Orcutt v. American Linen Supply Co., 212 A.D.2d 979, 980, 623 N.Y.S.2d 457;  see Aldrich v. County of Oneida, 299 A.D.2d 938, 939, 750 N.Y.S.2d 412).

 Contrary to the further contention of defendant, the court did not abuse its discretion in denying that part of his motion seeking bifurcation of the trial inasmuch as “ ‘the liability issue presented herein is uncomplicated and ․ a trial on both liability and damages would be brief’ ” (Zielinski v. Van Pelt [Appeal No. 2], 9 A.D.3d 874, 875, 781 N.Y.S.2d 549, quoting Di Pirro v. Thompson, 289 A.D.2d 1025, 1026, 735 N.Y.S.2d 452;  see Mazur v. Mazur, 288 A.D.2d 945, 946, 732 N.Y.S.2d 204).

Plaintiffs are not aggrieved by the order and thus their cross appeal must be dismissed (see CPLR 5511;  Town of Massena v. Niagara Mohawk Power Corp., 45 N.Y.2d 482, 488, 410 N.Y.S.2d 276, 382 N.E.2d 1139;  Matter of Brown v. Starkweather, 197 A.D.2d 840, 841, 602 N.Y.S.2d 449, lv. denied 82 N.Y.2d 653, 602 N.Y.S.2d 802, 622 N.E.2d 303).   In any event, the issue whether the court erred in disregarding two affidavits submitted in opposition to defendant's motion is now moot because we affirm the order denying defendant's motion.

It is hereby ORDERED that said cross appeal be and the same hereby is unanimously dismissed and the order is affirmed without costs.

MEMORANDUM: