TAYLOR v. KWIK FILL RED APPLE (2020)

MEMORANDUM AND ORDER

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

Memorandum: Plaintiff commenced this action seeking to recover damages for injuries that she sustained when she fell in a snowy parking lot in the Village of Medina. Defendant moved for summary judgment dismissing the complaint, contending that it had no duty to clear ice and snow from the lot because there was a storm in progress at the time of the fall. Defendant's evidentiary submissions included the affidavit of a meteorologist, who opined within a reasonable degree of professional certainty that it was snowing in Medina at the time of the fall. The data on which the meteorologist relied included weather records from Buffalo, Rochester, and Niagara Falls, and observations made in Lyndonville, Albion, and Lockport, but defendant's meteorologist did not rely on records from or observations made in Medina. In opposition, plaintiff submitted the affidavit of a different meteorologist, who opined that based on the available data there was no way to state within a reasonable degree of professional certainty that it was snowing in Medina at the time of the fall.

Contrary to defendant's contention, we conclude that Supreme Court properly denied the motion. Defendant failed to meet its initial burden of establishing that there was a storm in progress at the time of the fall (see Govenettio v. Dolgencorp of N.Y., Inc., 175 A.D.3d 1805, 1806, 109 N.Y.S.3d 796 [4th Dept. 2019]; Casey–Bernstein v. Leach & Powers, LLC, 170 A.D.3d 651, 652, 95 N.Y.S.3d 314 [2d Dept. 2019]), particularly because the opinion of defendant's meteorologist has “no evidentiary support in the record” (Wrobel v. Tops Mkts., LLC, 155 A.D.3d 1591, 1592, 63 N.Y.S.3d 633 [4th Dept. 2017] [internal quotation marks omitted] ). Furthermore, defendant failed to meet its initial burden of establishing that it lacked actual or constructive notice of the dangerous condition (see Dolinar v. Kaleida Health, 155 A.D.3d 1576, 1577, 63 N.Y.S.3d 632 [4th Dept. 2017]; Depczynski v. Mermigas, 149 A.D.3d 1511, 1512, 52 N.Y.S.3d 776 [4th Dept. 2017]). Because defendant failed to meet its initial burden, the court properly denied the motion regardless of the sufficiency of plaintiff's opposing submissions (see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]).