| Arriola v A&W Landscaping of Long Is. |
| 2009 NY Slip Op 09081 [68 AD3d 484] |
| December 8, 2009 |
| Appellate Division, First Department |
| Pedro Arriola et al., Respondents, v A&W Landscaping ofLong Island, Appellant. |
—[*1] David Resnick & Associates, P.C., New York (David Resnick of counsel), forrespondents.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered August 21, 2009, which,in an action for personal injuries sustained in a slip and fall on ice in a parking lot, denieddefendant's motion for summary judgment dismissing the complaint, unanimously reversed, onthe law, without costs, and the motion granted. The Clerk is directed to enter judgment in favorof defendant dismissing the complaint.
Dismissal of the complaint is warranted in this action where plaintiff alleges that his fall wasdue to defendant's failure to properly perform its snow-removal duties. The record shows thatdefendant met its prima facie burden of showing that it did not launch an instrument of harm bysubmitting evidence that it plowed the parking lot to the satisfaction of its owner several daysbefore plaintiff's fall. Plaintiff's testimony that on the day of his accident, he observedapproximately six inches of ice in some spots of the parking lot did not create a material issue offact (see Fung v Japan Airlines Co.,Ltd., 9 NY3d 351, 360-361 [2007]; Espinal v Melville Snow Contrs., 98 NY2d136, 141 [2002] [defendant "was under no obligation to monitor the weather to see if meltingand refreezing would create an icy condition"]; Cason-Payano v Damiano, 58 AD3d 472 [2009]).Concur—Andrias, P.J., Saxe, Sweeny, Moskowitz and Abdus-Salaam, JJ.