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

1167
CA 15-00386
PRESENT: SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


JAMES SPACHT AND MELODY SPACHT,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

COUNTY OF CHAUTAUQUA, DEFENDANT-RESPONDENT.


GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (HARRY J. FORREST OF
COUNSEL), FOR PLAINTIFFS-APPELLANTS.

BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Chautauqua County
(John T. Ward, A.J.), entered October 2, 2014. The order granted the
motion of defendant for summary judgment and dismissed the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied,
and the complaint is reinstated.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by James Spacht (plaintiff) when he slipped and
fell on snow and ice in a parking lot located on property owned by
defendant. Defendant leased the premises to plaintiffs, who operated
a bakery and café there. We agree with plaintiffs that Supreme Court
erred in granting defendant’s motion for summary judgment dismissing
the complaint. Defendant contended in support of its motion that it
had no duty to maintain the property where plaintiff fell, but
defendant failed to meet its initial burden with respect to that
contention (see generally Zuckerman v City of New York, 49 NY2d 557,
562). Here, the provisions of the lease specifically required
defendant to “provide snow plowing and shoveling services for
[plaintiffs], to be completed by 8:00 a.m. Monday through Friday, and
as needed on weekends” (see Santerre v Golub Corp., 11 AD3d 945, 946;
see also Coyle v Gerritsen Ave. Shopping Ctr., 176 AD2d 232, 232).
Defendant also contended in support of its motion that its failure to
clear snow from the premises was not a proximate cause of plaintiff’s
fall, but defendant failed to meet its initial burden with respect to
that contention as well, inasmuch as “conclusory [and speculative]
assertions are insufficient to demonstrate the absence of any material
issues of fact” (Ayotte v Gervasio, 81 NY2d 1062, 1063; see Jeune v
O.T. Trans Mix Corp., 29 AD3d 635, 636). Here, there is no dispute
that defendant failed to clear any snow from the premises on the date
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                                                         CA 15-00386

of the accident and, in its moving papers, defendant relies on pure
speculation to conclude that it would not have been able to clear snow
in between vehicles in the parking lot where plaintiff fell. Finally,
we note that defendant improperly contended for the first time in its
reply papers that it did not create the alleged dangerous condition or
have actual or constructive notice of it, and those contentions
therefore were not properly before the court (see Azzopardi v American
Blower Corp., 192 AD2d 453, 454; see also DiPizio v DiPizio, 81 AD3d
1369, 1370).




Entered:   November 20, 2015                   Frances E. Cafarell
                                               Clerk of the Court
