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Chapman v. Pyramid Company of Buffalo

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


June 5, 2009

DONNA M. CHAPMAN AND SAMUEL CHAPMAN, INDIVIDUALLY AND AS WIFE AND HUSBAND, PLAINTIFFS-APPELLANTS,
v.
PYRAMID COMPANY OF BUFFALO, THE PYRAMID COMPANIES, WALDEN GALLERIA LLC, WALDEN GALLERIA ENTERPRISES, LLC, PYRAMID MANAGEMENT GROUP, INC., AND PYRAMID WALDEN COMPANY, L.P., DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered December 3, 2007 in a personal injury action. The order granted the motion of defendants for summary judgment and dismissed the complaint.

PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND GREEN, JJ.

MEMORANDUM AND ORDER

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 Donna M. Chapman (plaintiff) when she allegedly slipped and fell on snow and ice in the parking lot of a mall. Supreme Court properly granted defendants' motion seeking summary judgment dismissing the complaint. Contrary to plaintiffs' contention, defendants met their initial burden by submitting evidence establishing that there was a storm in progress at the time of the accident (see Brierley v Great Lakes Motor Corp., 41 AD3d 1159, 1160; Camacho v Garcia, 273 AD2d 835). In opposition to the motion, plaintiffs failed to raise a triable issue of fact with respect to their allegation that the ice that caused the accident existed prior to the storm, and whether the precipitation from the ongoing storm was a proximate cause of plaintiff's fall (see Martin v Wagner, 30 AD3d 733, 735; Parker v Rust Plant Servs., Inc., 9 AD3d 671, 672-673; cf. Pacelli v Pinsley, 267 AD2d 706, 707-708). Plaintiffs' contention that the court erred in granting the motion because defendants failed to attach a copy of the pleadings to the motion papers is raised for the first time on appeal and thus is not properly before us (see Provident Bank v Giannasca, 55 AD3d 812; Blazynski v A. Gareleck & Sons, Inc., 48 AD3d 1168, 1169, lv dismissed in part and denied in part 11 NY3d 825).

20090605

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