| Fung v Japan Airlines Co., Ltd. |
| 2008 NY Slip Op 04648 [51 AD3d 861] |
| May 20, 2008 |
| Appellate Division, Second Department |
| Brent F. Fung et al., Respondents, v Japan AirlinesCompany, Ltd., et al., Defendants, and Japan Airlines Management Corp., Defendant andThird-Party Plaintiff-Appellant. Aero Snow Removal Corp. et al., Third-PartyDefendants. |
—[*1] Edelman, Krasin & Jaye, PLLC (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [BrianJ. Isaac], of counsel), for plaintiffs-respondents.
In an action, inter alia, to recover damages for personal injuries, Japan Airlines ManagementCorp., the defendant third-party plaintiff, appeals, as limited by its brief, from so much of anorder of the Supreme Court, Queens County (Price, J.), dated March 30, 2005, as denied thatbranch of its motion which was for summary judgment dismissing the complaint insofar asasserted against it. By opinion of the Court of Appeals dated December 13, 2007, the decisionand order of this Court dated July 25, 2006 (see Fung v Japan Airlines Co., Ltd., 31 AD3d 707 [2006]), wasmodified in part, and the matter was remitted to this Court for consideration of the issues raised,but not determined by this Court, on the appeal (see Fung v Japan Airlines Co., Ltd., 9 NY3d 351 [2007]).
Ordered that the order is reversed insofar as appealed from, on the law and the facts, withcosts, and that branch of the motion of Japan Airlines Management Corp. which was forsummary judgment dismissing the complaint insofar as asserted against it is granted.
The plaintiff Brent F. Fung (hereinafter the plaintiff) allegedly was injured when he slippedand fell on a patch of ice in a parking lot owned by his employer, the third-party defendant PortAuthority of New York and New Jersey (hereinafter the Port Authority). Pursuant to anagreement with the Port Authority, the defendant third-party plaintiff Japan [*2]Airlines Management Corp. (hereinafter Japan Airlines) hadcontracted for snow removal from the parking lot. At his deposition, the plaintiff acknowledgedthat he did not notice any ice in the parking lot until after he fell, that he did not know how longthe patch of ice existed before he fell, and that he did not see any snow covering the ice.
Japan Airlines made a prima facie showing that it neither created nor had actual orconstructive notice of the icy condition alleged to have caused the plaintiff's fall (see Makaron v Luna Park Hous. Corp.,25 AD3d 770 [2006]; Carricato v Jefferson Val. Mall Ltd. Partnership, 299AD2d 444 [2002]; DeVivo v Sparago, 287 AD2d 535 [2001]; Penny v PembrookMgt., 280 AD2d 590 [2001]). In opposition, the plaintiff failed to raise a triable issue of factas to whether the icy condition was visible and apparent for a sufficient period of time to bediscovered and remedied by Japan Airlines (see Hackbarth v McDonalds Corp., 31 AD3d 498 [2006]; Pizarro v Grenadier Realty Corp., 5AD3d 652 [2004]). The plaintiff's assertion that the patch of ice could have been created bynegligently-performed snow removal services is speculative and unsupported by any evidence(see Krichevskaya v City of New York,30 AD3d 471 [2006]; Yen Hsia v City of New York, 295 AD2d 565 [2002];Davis v City of New York, 255 AD2d 356 [1998]).
Moreover, as managing agent of the parking lot in which the plaintiff was injured, JapanAirlines could be subject to liability for nonfeasance only if it was in complete and exclusivecontrol of the management and operation of the parking lot (see Hagen v Gilman Mgt. Corp., 4 AD3d 330 [2004];Ioannidou v Kingswood Mgt. Corp., 203 AD2d 248 [1994]). Here, Japan Airlines could notbe held liable to the plaintiff because its agreement with the Port Authority was not a"comprehensive and exclusive" agreement that entirely displaced the Port Authority's duty as theowner to safely maintain the parking lot (see Usman v Alexander's Rego Shopping Ctr., Inc., 11 AD3d 450[2004]; Hagen v Gilman Mgt. Corp.,4 AD3d 330 [2004]).
Accordingly, the Supreme Court should have granted that branch of the motion of JapanAirlines which was for summary judgment dismissing the complaint insofar as asserted againstit.
The parties' remaining contentions either have been rendered academic or are without merit.
In light of our determination on the appeal, upon the entry of a judgment dismissing thecomplaint insofar as asserted against Japan Airlines, the other third-party complaint must also bedismissed. Skelos, J.P., Fisher, Florio and Dillon, JJ., concur. [See 2005 NY Slip Op30132(U).]