Paucar v Solaro

Paucar v Solaro 2013 NY Slip Op 07848 Decided on November 26, 2013 Appellate Division, First Department 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.

Decided on November 26, 2013
Mazzarelli, J.P., Acosta, Moskowitz, Manzanet-Daniels, Gische, JJ. 11168-
303550/09 11169

[*1]Sandra Paucar, et al., Plaintiffs-Appellants,

v

Patrice Solaro, et al., Defendants-Respondents.




Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for
appellants.
Devitt Spellman Barrett, LLP, Smithtown (John M. Denby of
counsel), for Patrice and Maria Solaro, respondents.
Pillinger Miller Tarallo, LLP, Elmsford (Shawn M. Weakland of
counsel), for Robert Doerr, respondent.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered December 19, 2012, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff Sandra Paucar alleges that she slipped and fell on a patch of clear ice located on the driveway of a house owned by defendants Patrice and Maria Solaro, for whom she worked. The snow had been last plowed by defendant Doerr, pursuant to a verbal agreement with the Solaros, more than one week earlier.

Defendants established their entitlement to judgment as a matter of law by submitting, inter alia, plaintiff's testimony that she had not seen any icy condition on the driveway prior to her fall, including earlier that day, and Maria Solaro's testimony that she did not observe an icy condition when she left the house that morning (see Roman v Met-Paca II Assoc., L.P., 85 AD3d 509 [1st Dept 2011]; Simmons v Metropolitan Life Ins. Co., 207 AD2d 290, 291 [1st Dept 1994], affd 84 NY2d 972 [1994]). Additionally, defendant Doerr established that he did not create the alleged condition and owed plaintiffs no duty (see Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]).

In opposition, plaintiffs failed to raise a triable issue of fact as her affidavit directly contradicted her earlier testimony (see Smith v Costco Wholesale Corp., 50 AD3d 499 [1st Dept 2008]). Plaintiff's new theory, that the snow removal contractor's method of piling snow in mounds, which then melted and caused water to run down the sloped driveway, creating the subject condition, which was a recurring condition, is unpreserved (see Fernandez v Riverdale [*2]Terrace, 63 AD3d 555 [1st Dept 2009]). In any event, the contention that the snow removal methods created a recurring condition is speculative, unsupported by the evidence or by climatological records, and contrary to the testimony which established a lack of any prior ice condition.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 26, 2013

CLERK