| Cason-Payano v Damiano |
| 2009 NY Slip Op 00102 [58 AD3d 472] |
| January 13, 2009 |
| Appellate Division, First Department |
| Sdhari Cason-Payano, Respondent, v Thomas G. Damianoet al., Respondents, and G.S. D'Antona Landscaping, Inc., Appellant. |
—[*1] Norman Liss, New York, for Sdhari Cason-Payano, respondent. Brill & Associates, P.C., New York (Corey M. Reichardt of counsel), for Thomas G.Damiano, Mary Anne Damiano and Thornwood Ltd, LLC, respondents. Wenick & Finger, P.C., New York (Frank J. Wenick of counsel), for Beth Israel MedicalCenter, respondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or aboutApril 9, 2008, which, in an action for personal injuries sustained in a slip and fall on ice in aparking lot, insofar as appealed from, denied defendant-appellant's snow removal contractor'smotion for summary judgment dismissing the complaint as against it, unanimously reversed, onthe law, without costs, the motion granted and the complaint dismissed as against the contractor.The Clerk is directed to enter judgment in favor of defendant G.S. D'Antona Landscaping, Inc.dismissing the complaint as against it.
Plaintiff's theory is that the contractor negligently created or exacerbated a snow-relatedhazard by piling snow on the sides of the parking lot, rather than removing it, thereby permittingit to melt, trickle into the depressed, uneven area of the lot, and freeze. We reject that theorybecause it is not supported by the contract or the testimony. While the contractor's contract withdefendant property owners obligated the contractor to initiate snow plowing and sanding/saltingin the event of "a minimum accumulation of one inch of snow" and to apply sand/salt in theevent of "hazardous icy weather conditions" without snow, it expressly relieved the contractor ofresponsibility "for the uneven pavement areas that continuously retain water/ice" and did notobligate the contractor to inspect the uneven area of the lot to see if melting and refreezing snowwere creating a hazardous condition. Given the parameters of the contract, combined with thetestimony that the last snowfall was three or four days prior to the accident, no icy weatherconditions existed on the day of the accident, and there was no snow piled up in the lot, only[*2]patchy areas on the sides of the lot near the stores, it isspeculation to assert that the ice on which plaintiff slipped was formed by snow or ice that thecontractor negligently piled up or failed to remove. "By merely plowing the snow, [thecontractor] cannot be said to have created or exacerbated a dangerous condition" (Espinal vMelville Snow Contrs., 98 NY2d 136, 142 [2002]). Concur—Andrias, J.P., Nardelli,Moskowitz, Renwick and Freedman, JJ.