Arriola v. A&W Landscaping of Long Island

68 A.D.3d 484, 888 N.Y.2d 890

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2009
• Status: Published

Opinion

Dismissal of the complaint is warranted in this action where plaintiff alleges that his fall was due to defendant’s failure to properly perform its snow-removal duties. The record shows that defendant met its prima facie burden of showing that it did not launch an instrument of harm by submitting evidence that it plowed the parking lot to the satisfaction of its owner several days before plaintiffs fall. Plaintiffs testimony that on the day of his accident, he observed approximately six inches of ice in some spots of the parking lot did not create a material issue of fact (see Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 360-361 [2007]; Espinal v Melville Snow Contrs., 98 NY2d 136, 141 [2002] [defendant “was under no obligation to monitor the weather to see if melting and refreezing would create an icy condition”]; Cason-Payano v Damiano, 58 AD3d 472 [2009]). Concur — Andrias, P.J., Saxe, Sweeny, Moskowitz and AbdusSalaam, JJ.