SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

924 

CA 16-00223 

PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, AND SCUDDER, JJ.

 

 

DARYL A. HANIFAN, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

COR DEVELOPMENT COMPANY, LLC AND LAWN 

TECH, INC., DEFENDANTS-APPELLANTS. 

OSBORN, REED & BURKE, LLP, ROCHESTER (L. DAMIEN COSTANZA OF COUNSEL),

FOR DEFENDANTS-APPELLANTS. 

DARYL A. HANIFAN, PLAINTIFF-RESPONDENT PRO SE. 

 

Appeal from an order of the Supreme Court, Onondaga County

(Anthony J. Paris, J.), entered April 27, 2015. The order, insofar as

appealed from, denied that part of the motion of defendants for

summary judgment dismissing the complaint.

It is hereby ORDERED that the order insofar as appealed from is 

unanimously reversed on the law without costs, the motion is granted

in part and the complaint is dismissed. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries she sustained when she slipped and fell on ice underneath

snow in a parking lot owned by defendant COR Development Company, LLC

and maintained pursuant to a snow removal contract by defendant Lawn

Tech, Inc. Defendants, as limited by their brief on appeal, contend

that Supreme Court erred in denying their motion insofar as they

sought summary judgment dismissing the complaint. We agree.

It is undisputed that defendants met their initial burden on the

motion “by establishing that a storm was in progress at the time of

the accident and, thus, that they had no duty to remove the snow and

ice until a reasonable time ha[d] elapsed after cessation of the

storm” (Gilbert v Tonawanda City Sch. Dist., 124 AD3d 1326, 1327

[internal quotation marks omitted]). In opposition, plaintiff failed

to raise a triable issue of fact “ ‘whether the accident was caused by

a slippery condition at the location where [she] fell that existed

prior to the storm, as opposed to precipitation from the storm in

progress, and that the defendant[s] had actual or constructive notice

of the preexisting condition’ ” (Quill v Churchville-Chili Cent. Sch.

Dist., 114 AD3d 1211, 1212). Even assuming, arguendo, that plaintiff

was entitled to rely upon the theory that the icy condition formed

prior to the storm upon the melting and refreezing of snow piles

created by defendants’ plowing practices (cf. Scanlon v Stuyvesant
-2- 924 

CA 16-00223 

Plaza, 195 AD2d 854, 855-856), we conclude that plaintiff’s assertion

is based on mere speculation and thus is insufficient to raise an

issue of fact (see Lima v Village of Garden City, 131 AD3d 947, 948-

949; Baia v Allright Parking Buffalo, Inc., 27 AD3d 1153, 1154). 

Indeed, in surmising that there must have been snow piles throughout

the parking lot from prior accumulations, plaintiff relied upon

inadmissible printouts from a weather data website (see Morabito v 11

Park Place LLC, 107 AD3d 472, 472), as well as defendants’ general

practices regarding snow removal as set forth in their contract (see

Nadel v Cucinella, 299 AD2d 250, 252). The record is devoid of

competent evidence that any such snow piles existed or, more

specifically, that a pile of snow was located near the area of the

parking lot where plaintiff fell that had melted and had then refrozen

prior to the storm, resulting in the icy condition that caused

plaintiff’s accident (see Harvey v Laz Parking Ltd, LLC, 128 AD3d

1203, 1205; Perales v First Columbia 1200 NSR, LLC, 88 AD3d 1213,

1215). Finally, to the extent that plaintiff contends that

defendants’ snow removal efforts created the hazardous condition

because they did not properly care for the area where she fell even

though they had treated other areas of the parking lot during the

storm, we note that it is well settled that “ ‘[t]he mere failure to

remove all snow and ice from a . . . parking lot does not constitute

negligence’ and does not constitute creation of a hazard” (Wheeler v

Grande’Vie Senior Living Community, 31 AD3d 992, 992-993; see Glover v

Botsford, 109 AD3d 1182, 1184).

Entered: November 10, 2016 Frances E. Cafarell

Clerk of the Court