KELLY HAYES PLAINTIFF RESPONDENT v. NORSTAR APARTMENTS LLC AND SIARA MANAGEMENT INC DEFENDANTS APPELLANTS (2010)

MEMORANDUM AND ORDER

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

Memorandum:  Plaintiff commenced this action seeking damages for injuries she sustained when she allegedly slipped and fell on ice in the parking lot of an apartment building owned by defendant Norstar Apartments, LLC and managed by defendant Siara Management, Inc. We conclude that Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint.   Although defendants met their initial burden of establishing as a matter of law that there was a storm in progress at the time of the accident (see Chapman v. Pyramid Co. of Buffalo, 63 AD3d 1623;  Brierley v. Great Lakes Motor Corp., 41 AD3d 1159, 1160), the evidence submitted by plaintiff, particularly the detailed affidavit from her expert meteorologist and the accompanying weather reports, raised an issue of fact whether the ice in question had formed prior to commencement of the storm (see Schuster v. Dukarm, 38 AD3d 1358;  Williams v. Patrick, 30 AD3d 1059;  see also Bullard v. Pfohl's Tavern, Inc., 11 AD3d 1026).   We reject defendants' further contention that they are entitled to summary judgment because they established that plaintiff fell on snow that had recently fallen rather than ice previously formed.   Plaintiff's deposition testimony was sufficient to raise an issue of fact in that regard as well.

Patricia L. Morgan

Clerk of the Court