GROTH v. Paul V. Massey, Individually, and Paul V. Massey, Doing Business as Grasshopper Landscaping, Defendant-Respondent. (2009)

 Plaintiffs commenced this action seeking damages for injuries sustained by Richard N. Groth (plaintiff) when he slipped and fell in a parking lot owned by defendant BJ's Wholesale Club, Inc. (BJ's). Supreme Court properly denied that part of the motion of BJ's for summary judgment dismissing the complaint against it.   BJ's failed to meet its “initial burden of establishing that it did not create the dangerous condition that caused plaintiff to fall and did not have actual or constructive notice thereof” (Quinn v. Holiday Health & Fitness Ctrs. of N.Y., Inc., 15 A.D.3d 857, 857, 789 N.Y.S.2d 782;  see Kimpland v. Camillus Mall Assoc., L.P., 37 A.D.3d 1128, 829 N.Y.S.2d 354).   In any event, even assuming, arguendo, that BJ's met its initial burden, we conclude that plaintiffs raised a triable issue of fact sufficient to defeat the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

 We reject the contention of BJ's that the court erred in granting that part of the cross motion of defendant Paul V. Massey, individually and doing business as Grasshopper Landscaping, for summary judgment dismissing the complaint against him.   Pursuant to his snow removal contract with BJ's, Massey was obligated to plow after at least two inches of snow had accumulated.   He established in support of the cross motion that he plowed snow in the parking lot two days before the accident and salted one day before the accident.   He further established that, on the day of the accident, the snow accumulation was less than two inches and that BJ's did not request that he apply salt or plow that day.  “[B]y merely plowing the snow, as required by the contract, [the] actions [of Massey] could not be said ‘to have created or exacerbated a dangerous condition’ ” (Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 361, 850 N.Y.S.2d 359, 880 N.E.2d 845, quoting Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 142, 746 N.Y.S.2d 120, 773 N.E.2d 485). We have considered BJ's remaining contentions and conclude that they are lacking in merit.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: