Arriola v A&W Landscaping of Long Is.

Arriola v A&W Landscaping of Long Is. 2009 NY Slip Op 09081 [68 AD3d 484] December 8, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Pedro Arriola et al., Respondents,
v
A&W Landscaping of Long Island, Appellant.

—[*1] Gorton & Gorton LLP, Mineola (John T. Gorton of counsel), for appellant.

David Resnick & Associates, P.C., New York (David Resnick of counsel), for respondents.

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.

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 [2007]; Espinal v Melville Snow Contrs., 98 NY2d 136, 141 [2002] [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 [2009]). Concur—Andrias, P.J., Saxe, Sweeny, Moskowitz and Abdus-Salaam, JJ.