        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

989
CA 15-00138
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


SHAZAM INDARJALI, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

SHABANA INDARJALI, DEFENDANT-APPELLANT.


BARTH SULLIVAN BEHR, BUFFALO (ALEX M. NEUROHR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

ALEXANDER & CATALANO, LLC, EAST SYRACUSE (PETER CATALANO OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County
(Anthony J. Paris, J.), entered April 29, 2014. The order denied
defendant’s motion for summary judgment dismissing plaintiff’s
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained when he slipped and fell on the steps
of residential property owned by defendant. Supreme Court properly
denied defendant’s motion for summary judgment dismissing the
complaint. We conclude that defendant failed to establish as a matter
of law that there was a storm in progress at the time of plaintiff’s
accident (see Korthals v LCB Capital, LLC, 115 AD3d 1326, 1326-1327;
Verleni v City of Jamestown, 66 AD3d 1359, 1360). Plaintiff’s
equivocal deposition testimony, which defendant submitted in support
of her motion, was insufficient to establish that the snow on the
steps “was the result of an ongoing storm as opposed to an
accumulation of [snow] from . . . prior snowfalls” (McBryant v Pisa
Holding Corp., 110 AD3d 1034, 1036).

     In addition, the court properly determined that, even assuming,
arguendo, defendant was entitled to judgment based upon the storm in
progress doctrine, there is an issue of fact whether the rotten and
deteriorated condition of the boards on the staircase caused or
contributed to plaintiff’s injuries. Indeed, we note that defendant
did not address that theory of liability in her motion (see Valenti v
Camins, 95 AD3d 519, 522). In any event, we reject defendant’s
contention that plaintiff’s opposing submissions in support of that
theory of liability were “merely an attempt to raise a feigned issue
of fact” to defeat the motion (Schwartz v Vukson, 67 AD3d 1398, 1400).
                                 -2-                           989
                                                         CA 15-00138

Plaintiff was not questioned at his deposition with respect to the
allegedly unsafe condition of the stairs and, thus, his submissions
did not contradict his deposition testimony on that issue.




Entered:   October 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
