NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 8, 2009
PEDRO ARRIOLA, ET AL., PLAINTIFFS-RESPONDENTS,
A & W LANDSCAPING OF LONG ISLAND, DEFENDANT-APPELLANT.
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, denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant 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.
Andrias, P.J., Saxe, Sweeny, Moskowitz, Abdus-Salaam, JJ.
Dismissal of the complaint is warranted in this action where plaintiff alleges that his fall was due to defendant's failure to properly perform its snow-removal duties. The record shows that defendant met its prima facie burden of showing that it did not launch an instrument of harm by submitting evidence that it plowed the parking lot to the satisfaction of its owner several days before plaintiff's fall. Plaintiff's testimony that on the day of his accident, he observed approximately six inches of ice in some spots of the parking lot did not create a material issue of fact (see Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 360-361 ; Espinal v Melville Snow Contrs., Inc., 98 NY2d 136, 141  [defendant "was under no obligation to monitor the weather to see if melting and refreezing would create an icy condition"]; Cason-Payano v Damiano, 58 AD3d 472 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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