                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 12, 2015                    519506
________________________________

ANTHONY PRUSKY et al.,
                    Respondents,
      v                                     MEMORANDUM AND ORDER

DANIEL McCARTY et al.,
                    Appellants.
________________________________


Calendar Date:   January 5, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


      Hite & Beaumont PC, Albany (John H. Beaumont of counsel),
for appellants.

      James Trauring & Associates, Schenectady (Zachary M.
Stevens of counsel), for respondents.

                             __________


Clark, J.

      Appeal from an order of the Supreme Court (Ferradino, J.),
entered October 29, 2013 in Saratoga County, which denied
defendants' motion for summary judgment dismissing the complaint.

      Plaintiff Anthony Prusky (hereinafter plaintiff) was
employed as a service technician for a satellite television
provider. In February 2010, he was dispatched to defendants'
residence on a service call. He was purportedly injured when he
slipped and fell on ice while walking toward the rear of the
house. Plaintiff and his wife, derivatively, thereafter
commenced this action, alleging that defendants negligently
maintained the premises, created a dangerous condition by failing
to remove snow and ice and failed to provide any warning of that
condition. Following joinder of issue, defendants moved for
                              -2-                 519506

summary judgment dismissing the complaint.   Supreme Court denied
the motion, and defendants appeal.

      We affirm. "As landowners, defendants owed a duty to
exercise reasonable care in maintaining their property in a safe
condition under all the circumstances, including the likelihood
of injury to others, the seriousness of the potential injuries,
the burden of avoiding the risk and the foreseeability of a
potential plaintiff's presence on the property" (Perrelli v
Orlow, 273 AD2d 533, 534 [2000]; see Galindo v Town of
Clarkstown, 2 NY3d 633, 636 [2004]; Drake v Sagbolt, LLC, 112
AD3d 1132, 1132-1133 [2013]). To put it briefly, the scope of a
landowner's duty is measured in terms of foreseeability, which
may only be determined as a matter of law where "a single
inference can be drawn from the undisputed facts" (Perrelli v
Orlow, 273 AD2d at 534; see Drake v Sagbolt, LLC, 112 AD3d at
1133).

      Defendants assert that plaintiff had left a walkway and was
walking across their snow- and ice-covered lawn when he fell and
that, as a result, they owed no duty of reasonable care to him.
Plaintiff consistently stated that he did not know whether he
fell on a walkway or the lawn because both were covered with snow
and ice. Plaintiff did recall, however, that he was walking on
snow that had been previously packed down by foot traffic and
that he was on an "obvious pathway for reaching the back of the
home."1   Defendants provided no evidence to suggest that such a
pathway did not exist or that plaintiff was not using it.
Viewing this evidence in the light most favorable to plaintiffs,
as the nonmovants, we agree with Supreme Court that defendants


    1
        Contrary to defendants' contention, while plaintiff's
affidavit in opposition to their summary judgment motion differed
in some respects from his deposition testimony, the two are not
inherently contradictory. Accordingly, plaintiff's affidavit
"cannot be seen as an attempt to avoid the consequences of his
prior testimony by creating a feigned question of fact, but
instead merely raised a credibility issue" (Sullivan v Schindler
El. Corp., 94 AD3d 1207, 1209 [2012]; see Sutin v Pawlus, 105
AD3d 1293, 1295 [2013]).
                              -3-                  519506

failed to conclusively establish that they did not owe a duty to
plaintiff (see Drake v Sagbolt, LLC, 112 AD3d at 1133-1134;
Perrelli v Orlow, 273 AD2d at 534-535; see also Malley v Alice
Hyde Hosp. Assn., 297 AD2d 425, 425-426 [2002]). Thus,
defendants' motion for summary judgment was properly denied.

     McCarthy, J.P., Egan Jr. and Lynch, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
