| Crosthwaite v Acadia Realty Trust |
| 2009 NY Slip Op 04021 [62 AD3d 823] |
| May 19, 2009 |
| Appellate Division, Second Department |
| Cynthia Crosthwaite, as Administrator of Estate of Gladys P.Williams, Deceased, Appellant, v Acadia Realty Trust et al.,Respondents. |
—[*1] Perez & Varvaro, Uniondale, N.Y. (Joseph Varvaro of counsel), for respondents AcadiaRealty Trust, Port Bay Associates, also sued herein incorrectly as Port Bay Associates, LLC, andSoundview Shopping Center, also sued herein incorrectly as Soundview Management, LLC. Mazzara & Small, P.C., Hauppauge, N.Y. (Timothy F. Mazzara of counsel), for respondentMaura Bros. & Co., Inc.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), datedJanuary 15, 2008, as granted that branch of the motion of the defendants Acadia Realty Trust,Port Bay Associates, also sued herein incorrectly as Port Bay Associates, LLC, and SoundviewShopping Center, also sued herein incorrectly as Soundview Management, LLC, and that branchof the cross motion of the defendant Maura Bros. & Co., Inc., which were for summary judgmentdismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe respondents appearing separately and filing separate briefs.
The plaintiff's decedent Gladys P. Williams allegedly was injured when she slipped and fellon "black" ice in the parking lot of a shopping mall owned by the defendant Port Bay Associates,[*2]also sued herein incorrectly as Port Bay Associates, LLC, onland owned by the defendant Soundview Shopping Center, also sued herein incorrectly asSoundview Management, LLC, and managed by the defendant Acadia Realty Trust (hereinaftercollectively the defendants). The defendant Maura Bros. & Co., Inc. (hereinafter Maura), was asnow-removal contractor that had plowed, salted, and sanded the parking lot the day before theaccident, and salted and sanded it the day of the accident.
A property owner or a party in possession or control will be held liable for a slip-and-fallinvolving snow and ice on its property only when it created the alleged dangerous condition orhad actual or constructive notice of it (see Nielsen v Metro-North Commuter R.R. Co., 30 AD3d 497[2006]; Zabbia v Westwood, LLC,18 AD3d 542, 544 [2005]; Voss v D&C Parking, 299 AD2d 346 [2002]). Inopposition to the defendants' prima facie showing of their entitlement to judgment as a matter oflaw dismissing the complaint insofar as asserted against them, the plaintiff failed to establish thatthey created the complained-of condition or had actual or constructive notice thereof (seeNielsen v Metro-North Commuter R.R. Co., 30 AD3d at 497; Zabbia v Westwood, LLC,18 AD3d at 544-545).
Moreover, generally, a snow-removal contractor's contractual obligation for snow removal,standing alone, will not give rise to tort liability to an injured plaintiff unless: (1) in failing toexercise reasonable care in the performance of its duties, it launched a force or instrument ofharm, (2) the plaintiff detrimentally relied on the continued performance of the snow-removalcontractor's duties, or (3) the snow-removal contractor has entirely displaced the propertyowner's duty to maintain the premises safely (see Abbattista v King's Grant Master Assn., Inc., 39 AD3d 439,440 [2007]).
The plaintiff's sole theory of liability against Maura was that it allegedly created the "black"ice by piling snow adjacent to the parking lot and allowing it to melt and refreeze. At herdeposition, the plaintiff's decedent testified that approximately 15 minutes before the accidentshe saw no ice in the area where the accident occurred, and that after the accident she neithersaw nor felt ice in that location. In opposition to that branch of Maura's cross motion which wasfor summary judgment dismissing the complaint insofar as asserted against it, however, theplaintiff tendered no admissible proof, expert or otherwise, as to exactly how or when the allegedicy condition may have formed during the approximately 15-minute period between theplaintiff's decedent's arrival at the mall and the accident. Thus, the plaintiff's claim that Mauracaused or created the alleged icy condition through incomplete snow removal was based onspeculation, which was insufficient to defeat a motion for summary judgment (id.; see Zabbiav Westwood, LLC, 18 AD3d at 544).
The parties' remaining contentions either are without merit or have been rendered academicin light of our determination. Mastro, J.P., Dillon, Covello and Dickerson, JJ., concur.