Opinion
7311 Index 21600/14E
10-11-2018
Marcio B. Membreno GALLO, Plaintiff–Respondent, v. A.W. ARCIERE, INC., et al., Defendants–Appellants.
Koster, Brady & Nagler, New York (Louis E. Valvo of counsel, New York), for appellants. Mallilo & Grossman, Flushing (Joanna Lambridis of counsel, Flushing), for respondent.
Koster, Brady & Nagler, New York (Louis E. Valvo of counsel, New York), for appellants.
Mallilo & Grossman, Flushing (Joanna Lambridis of counsel, Flushing), for respondent.
Friedman, J.P., Gische, Kapnick, Kahn, Oing, JJ.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered February 6, 2018, which denied defendants' 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 accordingly.
Dismissal of the complaint is warranted in this action where plaintiff was injured when he slipped and fell on an icy patch on the sidewalk in front of defendants' market. Defendant submitted evidence showing that it did not create or have actual or constructive notice of the icy patch. Defendants' employee stated that she shoveled the sidewalk the night before the accident and salted the area and that there was no ice on the sidewalk when she left work that night. The employee also stated she did not see snow or ice when she arrived at work about 15 minutes before the accident. Plaintiff does not contradict this statement, and, in any event, provided no evidence as to how long the hazardous condition was present on the sidewalk in front of the market so as to raise a factual issue as to notice (see Roman v. Met–Paca II Assoc., L.P. , 85 A.D.3d 509, 510, 925 N.Y.S.2d 447 [1st Dept. 2011] ). Furthermore defendants' employee provided that she also salted the area upon arriving at work as a precaution, and no evidence was presented to suggest that her conduct somehow created the hazardous condition (see Killeen v. Our Lady of Mercy Med. Ctr. , 35 A.D.3d 205, 827 N.Y.S.2d 19 [1st Dept. 2006] ).