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DONNA M. CHAPMAN et al., Appellants, v. PYRAMID COMPANY OF BUFFALO et al., Respondents.

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 plaintiffs 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).

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CHAPMAN v. PYRAMID COMPANY
(Jun 5, 2009)