Daley v Janel Tower L.P.

Daley v Janel Tower L.P. 2011 NY Slip Op 07676 Decided on November 1, 2011 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 1, 2011
Gonzalez, P.J., Tom, Sweeny, Renwick, Román, JJ.
5905 18762/07

[*1]Ruth Daley, Plaintiff-Appellant,

v

Janel Tower L.P., et al., Defendants-Respondents.




Steven Wildstein, P.C., Great Neck (Steven Wildstein of
counsel), for appellant.
Gannon, Lawrence & Rosenfarb, New York (Lisa L.
Gokhulsingh of counsel), for respondents.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 27, 2010, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established their prima facie entitlement to judgment as a matter of law. Plaintiff alleges that she was injured when she fell on black ice in defendants' parking lot, next to an area where defendants' contractor piled snow after a snowfall. However, the climatological reports showed that it last snowed more than one week prior to plaintiff's fall and that during the three-day period prior to plaintiff's fall, temperatures remained well above freezing. Accordingly, the purported icy condition, consisting of a two-by-two-foot square, would not have formed under those circumstances (see Perez v Canale, 50 AD3d 437 [2008]; compare San Marco v Village/Town of Mount Kisco, 16 NY3d 111 [2010]).

In opposition, plaintiff failed to raise a triable issue of fact. Her affidavit in opposition to the motion, and the errata sheet of her deposition, which was not served on defendants until 11 months after her deposition, conflicted materially with her original description of the condition of the area where she fell (see Perez v Mekulovic, 13 AD3d 158 [2004]; see also Smith v Costco Wholesale Corp., 50 AD3d 499, 501 [2008]).

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

ENTERED: NOVEMBER 1, 2011

CLERK