| Maldonado v Novartis Pharms. Corp. |
| 2009 NY Slip Op 00511 [58 AD3d 813] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Frank Maldonado, Appellant, v Novartis PharmaceuticalsCorporation, Respondent, et al., Defendants. (And a Third-PartyAction.) |
—[*1] Jeffrey Samel, New York, N.Y. (David Samel of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Rockland County (Garvey, J.), entered February 7, 2008, which granted themotion of the defendant Novartis Pharmaceuticals Corporation for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
The plaintiff was an employee of the third-party defendant, American Building MaintenanceCompany of New York (hereinafter ABM), which had contracted with the defendant propertyowner, Novartis Pharmaceuticals Corporation (hereinafter Novartis), to perform maintenanceservices on real property owned by Novartis. The plaintiff allegedly sustained serious injurieswhen he slipped and fell on snow and ice on a metal grate covering a storm drain, which waslocated in a grassy area of the subject real property approximately three to four feet away fromthe nearest walkway.
Even accepting as true the plaintiff's contention that Novartis authorized ABM's workers todump water and debris down exterior storm drains (see Dykeman v Heht, 52 AD3d 767 [2008]; Secof v GreensCondominium, 158 AD2d 591, 593 [1990]), Novartis established its prima facie entitlementto judgment as a matter of law by demonstrating that it had no duty to clear snow and ice fromthe metal grate covering the storm drain upon which the plaintiff slipped and fell (see Yan Quan Wu v [*2]City of New York, 42 AD3d 451 [2007]; Belo-Osagie v Starrett City Assn., 41AD3d 521 [2007]; Moran v StateDuct Corp., 41 AD3d 440 [2007]; Wesolowski v Wesolowski, 306 AD2d 402[2003]; see also Rosenbloom v City of New York, 254 AD2d 474 [1998]). In opposition,the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49NY2d 557, 562 [1980]). Further, Novartis established, prima facie, that it did not create theallegedly icy condition of the storm drain or have actual or constructive notice thereof. Inopposition, the plaintiff failed to raise a triable issue of fact. At best, the plaintiff's evidenceregarding his prior complaints of ice on the storm drain area and an alleged slip and fall on icecovering a storm drain by a coworker two years before the instant accident demonstrated onlythat Novartis may have had a general awareness that ice accumulated on the storm drains, whichis insufficient to constitute actual notice thereof (see Solazzo v New York City Tr. Auth., 6 NY3d 734 [2005]; Jaffe v New York City Tr. Auth., 52AD3d 784 [2008]; Perlongo v ParkCity 3 & 4 Apts., Inc., 31 AD3d 409, 411 [2006]). The plaintiff also failed to raise atriable issue of fact as to whether Novartis created the allegedly hazardous condition or hadconstructive notice thereof (see Zuckerman v City of New York, 49 NY2d 557, 562[1980]). The plaintiff's remaining contentions are without merit. Accordingly, the Supreme Courtproperly awarded summary judgment to Novartis dismissing the complaint insofar as assertedagainst it. Fisher, J.P., Miller, Carni and Balkin, JJ., concur.