| Morales v Gross |
| 2021 NY Slip Op 00632 |
| Decided on February 04, 2021 |
| Appellate Division, First Department |
| 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. |
Decided and Entered: February 04, 2021
Before: Kapnick, J.P., Mazzarelli, Moulton, Shulman, JJ.
Index No. 302479/15 Appeal No. 13032 Case No. 2020-03685
v
Alyce Gross et al., Defendants-Respondents. [And a Third-Party Action]
Diamond and Diamond, LLC, Brooklyn (Stuart Diamond of counsel), for appellant.
Varvaro, Cotter & Bender, White Plains (Stephen J. Cassels of counsel), for respondents.
Order, Supreme Court, Bronx County (Robert T. Johnson, J.), entered on or about June 25, 2020, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
In this action where plaintiff alleges that he was injured after he fell on a snowy or icy condition on defendants' driveway, defendants failed to meet their prima facie burden of establishing entitlement to judgment as a matter of law. The meteorologists' reports relied upon by defendants were not in admissible form (see Accardo v Metro-North R.R., 103 AD3d 589, 589 [1st Dept 2013]). The reports contain no jurat, stamp of a notary public, or any other indication that the experts were actually sworn (id.; Lillo-Arouca v Masoud, 163 AD3d 646, 647 [2d Dept 2018]; cf. Collins v AA Truck Renting Corp., 209 AD2d 363 [1st Dept 1994]).
In any event, contrary to defendants' contention, the testimony of the parties alone did not establish that the snowstorm was still in progress at the time of the accident, and was therefore insufficient to avail them of the storm in progress defense (see generally Powell v MLG Hillside Assoc., 290 AD2d 345, 345 [1st Dept 2002]). THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: February 4, 2021