Salamone v Midland Ave. Owners Corp.

Salamone v Midland Ave. Owners Corp. 2009 NY Slip Op 07154 [66 AD3d 422] October 6, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

Michael Salamone et al., Respondents,
v
Midland Avenue Owners Corp. et al., Appellants, et al., Defendants.

—[*1] Thomas D. Hughes, New York (Richard C. Rubinstein of counsel), for appellants.

Scarcella Law Offices, White Plains (M. Sean Duffy of counsel), for respondents.

Order, Supreme Court, Bronx County (Alan Saks, J.), entered August 21, 2008, which, inter alia, denied defendants-appellants' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The conflicting testimony of plaintiffs and defendants-appellants' building manager and the certified weather reports from weather stations in the areas around Yonkers, where the accident occurred, raise an issue of fact whether there was a "storm in progress" in Yonkers at the time of the accident (see Krause v City of New York, 152 AD2d 473 [1989], lv denied 76 NY2d 714 [1990]).

We have considered defendants-appellants' argument as to the admissibility of plaintiffs' expert's affidavit and find it unavailing. Concur—Saxe, J.P., Sweeny, Moskowitz, Acosta and Richter, JJ.