| Folkl v McCarey Landscaping, Inc. |
| 2009 NY Slip Op 07583 [66 AD3d 825] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Eileen Folkl, Appellant, v McCarey Landscaping, Inc.,Respondent. |
—[*1] Hodges Walsh & Slater, LLP, White Plains, N.Y. (Paul E. Svensson of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Orange County (McGuirk, J.), dated July 23, 2008, which granted thedefendant's renewed motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly slipped and fell on ice located in the parking lot of certain premisesowned by her employer Time Warner Cable. At the time of the plaintiff's alleged accident, TimeWarner Cable had a snow removal contract with the defendant. The plaintiff commenced thisaction to recover damages for personal injuries. In 2007 the defendant's motion for summaryjudgment was denied with leave to renew at the conclusion of discovery. Thereafter, thedefendant made a renewed motion for summary judgment dismissing the complaint. TheSupreme Court granted that motion. We affirm.
"The Court of Appeals has recognized three situations in which a party such as the defendantmay be said to have assumed a duty of care, and thus potentially may be liable in tort to thirdpersons such as the injured plaintiff: (1) where the contracting party, in failing to exercisereasonable care in the performance of its duties, launches a force or instrument of harm; (2)where the plaintiff detrimentally relies on the continued performance of the contracting party'sduties; and (3) where the contracting party has entirely displaced the other party's duty tomaintain the premises safely" (Conte vServisair/Globeground, 63 AD3d 981, 982 [2009], citing Espinal v Melville SnowContrs., 98 NY2d 136, 140 [2002]).
The defendant made a prima facie showing that none of the situations in which liability maybe imposed, as described in Espinal, were applicable herein (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]; Mahaney v Neuroscience Ctr., 28 AD3d 432, 433-434 [2006]). Inopposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant createdor exacerbated the alleged condition upon [*2]which she fell(see Mahaney v Neuroscience Ctr., 28 AD3d at 433-434; McCord v Olympia & York Maiden LaneCo., 8 AD3d 634, 636 [2004]). Her submissions, which consisted of, among otherthings, the affidavit of a meteorologist, were speculative and/or insufficient to defeat thedefendant's renewed motion for summary judgment dismissing the complaint (see Zabbia v Westwood, LLC, 18AD3d 542, 544 [2005]).
The plaintiff's remaining contention is without merit. Rivera, J.P., Florio, Austin, JJ., concur. Belen, J. (dissenting, and voting to reverse the order appealed from and deny the defendant'srenewed motion for summary judgment dismissing the complaint, with the followingmemorandum): I respectfully dissent. In my opinion, in opposition to the defendant'sdemonstration of its entitlement to judgment as a matter of law dismissing the complaint, theplaintiff raised a triable issue of fact as to whether the defendant launched a force or instrumentof harm by piling snow in the parking lot, which, in the six or seven days between the lastsnowfall and her accident, melted and refroze into the ice upon which she slipped and fell (see Elsey v Clark Trading Corp., 57AD3d 1330, 1331-1332 [2008]; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314, 1316[2007]; Ricca v Ahmad, 40 AD3d728 [2007]; Brightley v City ofNew York, 29 AD3d 926 [2006]; Grillo v Brooklyn Hosp., 280 AD2d 452[2001]; cf. Espinal v Melville Snow Contrs., 98 NY2d 136, 141-142 [2002]).
The three cases principally relied upon by my colleagues in the majority are distinguishable.In Zabbia v Westwood, LLC (18AD3d 542 [2005]), the plaintiffs testified that when they first arrived at the subject mallparking lot, approximately four hours before the injured plaintiff allegedly slipped and fell onblack ice, the parking lot was not icy. In opposition to the defendants' prima facie case, "theplaintiffs tendered no proof, expert or otherwise, as to exactly how or when the icy conditionmay have formed during the four-hour period between their arrival at the mall and the accident.Thus, their claim that the defendants caused or created the ice patch through incomplete snowremoval efforts was based on speculation, which was insufficient to defeat a motion for summaryjudgment" (id. at 544 [citations omitted]).
Similarly, in Mahaney vNeuroscience Ctr. (28 AD3d 432 [2006]), the plaintiffs failed to raise a triable issue offact as to whether the icy condition resulted from snow piles the defendant created in the subjectparking lot or from snow from a nearby unplowed road. And, in McCord v Olympia & York Maiden LaneCo. (8 AD3d 634, 635 [2004]), the plaintiff failed to raise a triable issue of fact as towhether the defendant created or exacerbated the icy condition on the sidewalk because hisprofessional engineer failed to "point to any specific part of the climatological records to justifyhis conclusion that water could have melted from the allegedly 'over-piled' snow and refroze onthe sidewalk."
In contrast, here, in opposition to the defendant's renewed motion for summary judgment, theplaintiff submitted an affidavit in which she described the ice in the subject parking lot at thetime she arrived for work on the morning of December 16, 2005, and when she slippedlater that day at approximately 4:00 p.m., as several inches thick and uneven, and as having beenpresent since the last snowfall on December 9, 2005. Moreover, she stated that the icy conditionwas worsened or created by the defendant's creation of snow piles in the parking lot that meltedand refroze as the temperatures fluctuated in the days following the December 9th snowfall. Shefurther averred that the ice in the parking lot was so thick and had accumulated for so long that itsustained the weight of her car. In essence, the plaintiff's evidence in opposition shows that theentire parking lot was covered in a thick sheet of ice, which resulted from the melting andrefreezing of the snow piles created by the snowfall approximately one week earlier.[*3]
The plaintiff also submitted an affidavit of ameteorologist who concluded, based on his review of weather data, with a reasonable degree ofmeteorological certainty, that at approximately 4:00 p.m. on December 16, 2005, 4 to 4½inches of snow and ice were present on exposed, untreated, and undisturbed outdoor surfaces inthe vicinity of the plaintiff's accident. He further explained that such snow and ice resulted fromthe melting and refreezing of snow and ice that had fallen during the December 9-10, 2005snowfall.
Although the weather data relied on by the plaintiff indicates that freezing rain fell on themorning of December 16, 2005, this fact does not render speculative the plaintiff's assertion thatthe ice on which she fell resulted from the melting and refreezing of the snow piles created bythe defendant when it plowed the subject parking lot following the December 9-10, 2005snowfall. Indeed, the plaintiff's description of the ice as several inches thick and uneven isconsistent with her meteorological expert's description of 4 to 4½ inches of snow and icebeing present on undisturbed ground surfaces, and which resulted from the melting andrefreezing of snow and ice from the prior snowfall. As such, unlike the plaintiffs inZabbia, Mahaney, and McCord, the plaintiff herein raised a triable issueof fact as to whether the defendant launched a force or instrument of harm through its snowremoval efforts (see Elsey v Clark Trading Corp., 57 AD3d at 1331-1332; Torosian vBigsbee Vil. Homeowners Assn., 46 AD3d at 1316; Ricca v Ahmad, 40 AD3d at728; Vilorio v Suffolk Y JewishCommunity Ctr., Inc., 33 AD3d 696 [2006]; Brightley v City of New York, 29AD3d at 926; Grillo v Brooklyn Hosp., 280 AD2d at 452).
Summary judgment should be denied when there is "any doubt" or when the existence of atriable issue of fact is "arguable" (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d395, 404 [1957]; see St. Andrews Homeowners Assn. v Saint Andrew's Golf Club, 289AD2d 388 [2001]). Stated differently, "[t]he court's role on a motion for summary judgment is todetermine whether there is a material factual issue to be tried, not to resolve it . . .Where different conclusions can reasonably be drawn from the evidence, the motion should bedenied" (Sommer v Federal Signal Corp., 79 NY2d 540, 554-555 [1992]; see Lopez v Beltre, 59 AD3d 683,685 [2009]; Pirrelli v Long Is. R.R., 226 AD2d 166 [1996]). That is the case here. Sincean issue of fact clearly exists as to the source of the ice upon which the plaintiff fell, and themajority has improperly engaged in issue determination, I must respectfully dissent.