Cotter v Brookhaven Mem. Hosp. Med. Ctr., Inc., 2012 NY Slip Op 05382 (2nd Dept. 2012)
Here, the defendant property owner failed to establish, prima facie, that it was entitled to judgment as a matter of law dismissing the complaint based on the storm in progress rule. In support of its motion, the defendant submitted an affirmed report of a meteorologist who opined that a storm was in progress at the time the plaintiff allegedly slipped and fell on ice. However, copies of the records upon which the meteorologist relied in forming his opinion were not attached to the report, and thus, the report has no probative value (see Diaz v New York Downtown Hosp., 99 NY2d 542; Romano v Stanley, 90 NY2d 444, 451; Daniels v Meyers, 50 AD3d 1613; Schuster v Dukarm, 38 AD3d 1358). To meet its prima facie burden, the defendant could not rely on its submission of such records for the first time in its reply papers (see David v Byron, 56 AD3d 413, 414-415; Rengifo v City of New York, 7 AD3d 773; Voytek Tech. v Rapid Access Consulting, 279 AD2d 470, 471).