Opinion
2013-11-6
Nigel HARRIS, et al., plaintiffs-respondents, v. LANAI HOUSE, INC., defendant-respondent, Maroney Landscaping, Inc., appellant.
Mazzara & Samall, P.C., Hauppauge, N.Y. (Perry T. Criscitelli of counsel), for appellant. O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Ira E. Goldstein of counsel), for plaintiffs-respondents.
Mazzara & Samall, P.C., Hauppauge, N.Y. (Perry T. Criscitelli of counsel), for appellant. O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Ira E. Goldstein of counsel), for plaintiffs-respondents.
Crafa & Sofield, P.C., Rockville Centre, N.Y. (Thomas R. Sofield of counsel), for defendant-respondent.
, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injuries, etc., the defendant Maroney Landscaping, Inc., appeals from an order of the Supreme Court, Nassau County (Brandveen, J.), dated March 30, 2012, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that the order is affirmed, with one bill of costs.
The Supreme Court did not err in denying the motion of the defendant Maroney Landscaping, Inc. (hereinafter Maroney), for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Pursuant to a written contract with the defendant Lanai House, Inc. (hereinafter Lanai), Maroney was responsible for removing snow from the parking lot where the injured plaintiff's accident occurred. The plaintiffs alleged facts in their complaint and bill of particulars in support of their allegation that Maroney created or exacerbated an alleged dangerous condition. In support of its motion for summary judgment, Maroney was, therefore, required to establish, prima facie, that it did not create or exacerbate an alleged dangerous condition ( see Benavides v. 30 Brooklyn, LLC, 96 A.D.3d 889, 890, 946 N.Y.S.2d 513;Gushin v. Whispering Hills Condominium I, 96 A.D.3d 721, 722, 946 N.Y.S.2d 202).
Maroney failed to establish that it did not create or exacerbate a dangerous condition by pushing snow behind parked cars. Whether Maroney's snow removal efforts created or exacerbated a dangerous condition and, thus, launched a force or instrument of harm, is a question of fact for a jury ( see Gushin v. Whispering Hills Condominium I, 96 A.D.3d at 722, 946 N.Y.S.2d 202;Elsey v. Clark Trading Corp., 57 A.D.3d 1330, 1332, 871 N.Y.S.2d 439;Torosian v. Bigsbee Vil. Homeowners Assn., 46 A.D.3d 1314, 1316, 848 N.Y.S.2d 452;Keese v. Imperial Gardens Assoc., LLC, 36 A.D.3d 666, 668, 828 N.Y.S.2d 204). Since Maroney failed to make a prima facie showing of entitlement to judgment as a mater of law, we need not examine the sufficiency of the opposition papers ( see Mosca v. OCE Holding, Inc., 71 A.D.3d 1103, 898 N.Y.S.2d 204).