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Korthas v. U.S. Foodservice

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


April 24, 2009

JAMES KORTHAS AND CHRISTINE KORTHAS, PLAINTIFFS-RESPONDENTS,
v.
U.S. FOODSERVICE, INC., DOING BUSINESS AS U.S. FOODSERVICE OF BUFFALO, INC., DEFENDANT-APPELLANT.

Appeal from an order of the Supreme Court, Oswego County (James W. McCarthy, A.J.), entered July 7, 2008 in a personal injury action. The order denied the motion of defendant for summary judgment dismissing the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

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

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

Memorandum

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 NY3d 734, 735). 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 AD3d 1187, 1188).

20090424

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