Frazier v. Pioneer Central School District

Oct 1, 2002
Versions:298 A.D.2d 875
748 N.Y.S.2d 444
2002 N.Y. App. Div. LEXIS 8929

—Appeal from an order of Supreme Court, Cattaraugus County (Nenno, J.), entered January 28, 2002, which denied defendant’s motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint, which seeks damages for injuries allegedly sustained when plaintiff slipped and fell on an accumulation of ice on defendant’s loading dock. Defendant failed to meet its initial burden of establishing as a matter of law that the condition of the loading dock was not dangerous or defective or that defendant lacked actual or constructive notice of that condition (see Gentile v University of Rochester Med. Ctr., 292 AD2d 874; Atkinson v Golub Corp. Co., 278 AD2d 905, 905-906). Nor did defendant establish as a matter of law that plaintiff’s injuries were caused by a storm in progress (see Stalker v Crestview Cadillac Corp., 284 AD2d 977; see also Vickery v Estate of Brockman, 278 AD2d 913, 914; Gilmartin v Tempestoso, 273 *876AD2d 875). Because defendant failed to meet its initial burden, we do not address the sufficiency of plaintiff’s showing in opposition to the motion (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Gentile, 292 AD2d at 875; Frank v Price Chopper Operating Co., 275 AD2d 940, 941). Present — Pine, J.P., Hayes, Kehoe, Gorski and Lawton, JJ.