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

1370
CA 13-01053
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ.


JAY W. HANES, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ROBERT N. NARRACCI, DEFENDANT-APPELLANT.


JOSEPH D. CALDWELL, NEW HARTFORD, FOR DEFENDANT-APPELLANT.

THE GOLDEN LAW FIRM, UTICA (LAWRENCE W. GOLDEN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Herkimer County (Erin
P. Gall, J.), entered December 31, 2012 in a personal injury action.
The order denied the motion of defendant for summary judgment
dismissing the 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 down the
exterior stairway of a building owned by defendant. Supreme Court
properly denied defendant’s motion seeking summary judgment dismissing
the complaint. Defendant submitted evidence that, during the winter
months, a gap between the roof and the gutter caused icicles to form
and drip onto the stairway, resulting in the formation of black ice
thereon. We reject defendant’s contention that he was entitled to
judgment as a matter of law based upon plaintiff’s testimony at his
deposition that he was “guessing it was black ice” that caused his
fall (see Godfrey v Town of Hurley, 68 AD3d 1527, 1527-1528; Belles v
United Church of Warsaw, 66 AD3d 1470, 1471). Although plaintiff
testified that he did not see or otherwise sense that there was black
ice on the stairway before he fell, we conclude that defendant’s own
submissions raised a triable issue of fact with respect to proximate
cause (see Belles, 66 AD3d at 1471). Contrary to his further
contention, defendant failed to establish as a matter of law the merit
of his alternative theory that the accident was caused by snow tracked
onto the stairway in the treads of plaintiff’s boots (see Higgins v
Pope, 37 AD3d 1086, 1087). Inasmuch as defendant failed to meet his
burden on the motion, there is no need to consider the sufficiency of
plaintiff’s opposing papers (see Gafter v Buffalo Med. Group, P.C., 85
AD3d 1605, 1606).
Entered: January 3, 2014                        Frances E. Cafarell
                                                Clerk of the Court
