Opinion
2013-11-26
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.
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 A.D.3d 509, 925 N.Y.S.2d 447 [1st Dept.2011]; Simmons v. Metropolitan Life Ins. Co., 207 A.D.2d 290, 291, 615 N.Y.S.2d 395 [1st Dept.1994], affd. 84 N.Y.2d 972, 622 N.Y.S.2d 496, 646 N.E.2d 798 [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 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485 [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 A.D.3d 499, 856 N.Y.S.2d 573 [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 Terrace, 63 A.D.3d 555, 882 N.Y.S.2d 50 [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. MAZZARELLI, J.P., ACOSTA, MOSKOWITZ, MANZANET–DANIELS, GISCHE, JJ., concur.