From Casetext: Smarter Legal Research

Korthas v. U.S. Foodservice, Inc.

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 24, 2009
61 A.D.3d 1407 (N.Y. App. Div. 2009)

Opinion

No. CA 08-02435.

April 24, 2009.

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.

HISCOCK BARCLAY, LLP, SYRACUSE (ALAN R. PETERMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.

LYNN LAW FIRM, LLP, SYRACUSE (PATRICIA A. LYNNFORD OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

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: Plaintiff's 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).


Summaries of

Korthas v. U.S. Foodservice, Inc.

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 24, 2009
61 A.D.3d 1407 (N.Y. App. Div. 2009)
Case details for

Korthas v. U.S. Foodservice, Inc.

Case Details

Full title:JAMES KORTHAS et al., Respondents, v. U.S. FOODSERVICE, INC., Doing…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Apr 24, 2009

Citations

61 A.D.3d 1407 (N.Y. App. Div. 2009)
2009 N.Y. Slip Op. 3303
876 N.Y.S.2d 810

Citing Cases

Verleni v. City of Jamestown

We agree with plaintiff that Supreme Court erred in granting the motion of defendants seeking summary…

Plummer v. Town of Greece

Because defendants failed to meet their initial burden on the motion, the burden never shifted to plaintiff,…