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Folkl v. McCarey Landscaping

October 20, 2009

EILEEN FOLKL, APPELLANT,
v.
MCCAREY LANDSCAPING, INC., RESPONDENT



In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (McGuirk, J.), dated July 23, 2008, which granted the defendant's renewed motion for summary judgment dismissing the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, ARIEL E. BELEN and LEONARD B. AUSTIN, JJ.

(Index No. 8280/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly slipped and fell on ice located in the parking lot of certain premises owned by her employer, Time Warner Cable. At the time of the plaintiff's alleged accident, Time Warner Cable had a snow removal contract with the defendant. The plaintiff commenced this action to recover damages for personal injuries. In 2007 the defendant's motion for summary judgment was denied with leave to renew at the conclusion of discovery. Thereafter, the defendant made a renewed motion for summary judgment dismissing the complaint. The Supreme Court granted that motion. We affirm.

"The Court of Appeals has recognized three situations in which a party such as the defendant may be said to have assumed a duty of care, and thus potentially may be liable in tort to third persons such as the injured plaintiff: (1) where the contracting party, in failing to exercise reasonable 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's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Conte v Servisair/Globeground, 63 AD3d 981, 982, citing Espinal v Melville Snow Contrs., 98 NY2d 136, 140).

The defendant made a prima facie showing that none of the situations in which liability may be imposed, as described in Espinal, were applicable herein (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Mahaney v Neuroscience Ctr., 28 AD3d 432, 433-434). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant created or exacerbated the alleged condition upon which she fell (see Mahaney v Neuroscience Ctr., 28 AD3d at 433-434; McCord v Olympia & York Maiden Lane Co., 8 AD3d 634, 636). Her submissions, which consisted of, among other things, the affidavit of a meteorologist, were speculative and/or insufficient to defeat the defendant's renewed motion for summary judgment dismissing the complaint (see Zabbia v Westwood, LLC, 18 AD3d 542, 544).

The plaintiff's remaining contention is without merit.

RIVERA, J.P., FLORIO, AUSTIN, JJ., concur.

BELEN, J., dissents, and votes to reverse the order appealed from and deny the defendant's renewed motion for summary judgment dismissing the complaint, with the following memorandum

I respectfully dissent.

In my opinion, in opposition to the defendant's demonstration of its entitlement to judgment as a matter of law dismissing the complaint, the plaintiff raised a triable issue of fact as to whether the defendant launched a force or instrument of harm by piling snow in the parking lot, which, in the six or seven days between the last snowfall and her accident, melted and refroze into the ice upon which she slipped and fell (see Elsey v Clark Trading Corp., 57 AD3d 1330, 1331-1332; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314, 1316; Ricca v Ahmad, 40 AD3d ...


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