Summary
In Daley, there is no indication in the short one page decision, consisting of a mere three paragraphs, that an expert's affidavit was not submitted.
Summary of this case from Sikora v. Earth Leasing Prop. Ltd. Liab.Opinion
2011-11-1
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 A.D.3d 437, 855 N.Y.S.2d 488 [2008]; compare San Marco v. Village/Town of Mount Kisco, 16 N.Y.3d 111, 919 N.Y.S.2d 459, 944 N.E.2d 1098 [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 A.D.3d 158, 789 N.Y.S.2d 6 [2004]; see also Smith v. Costco Wholesale Corp., 50 A.D.3d 499, 501, 856 N.Y.S.2d 573 [2008] ).
GONZALEZ, P.J., TOM, SWEENY, RENWICK, ROMÁN, JJ., concur.