Opinion
CA 01-02374
May 3, 2002.
Appeal from an order of Supreme Court, Niagara County (Fricano, J.), entered September 21, 2001, which granted the motion of third-party plaintiff for leave to serve an amended third-party complaint and denied the cross motion of third-party defendant for summary judgment.
DAMON MOREY LLP, BUFFALO (HEDWIG M. AULETTA OF COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT.
WALSH, ROBERTS GRACE, BUFFALO (THOMAS E. ROBERTS OF COUNSEL), FOR THIRD-PARTY PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND GORSKI, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied, the cross motion is granted and the third-party complaint is dismissed.
Memorandum:
Plaintiff commenced this action to recover damages for personal injuries that she sustained when she slipped and fell on accumulated snow and ice in a parking lot in Niagara Falls. The property is owned by ACG Military Road Associates, L.P. (ACG), which contracted with defendant-third-party plaintiff, Benchmark Management Corporation (Benchmark), to manage it. ACG also contracted with third-party defendant, Haseley Trucking Co., Inc. (Haseley), for snow removal services. After commencing a third-party action against Haseley for breach of the snow removal contract, Benchmark moved for leave to serve an amended third-party complaint asserting an additional cause of action against Haseley for negligence. Haseley cross-moved for summary judgment dismissing the third-party complaint.
Supreme Court erred in granting Benchmark's motion inasmuch as the proposed cause of action lacks merit ( see Morgan v. Prospect Park Assoc. Holdings, 251 A.D.2d 306). We reject Benchmark's contention that Haseley's contractual undertaking is so comprehensive and exclusive as to give rise to a duty of care to third parties ( see Brenner v. Johnson Controls, 277 A.D.2d 412, 413; LaDue v. G A Group, 241 A.D.2d 791, 792; Phillips v. Young Men's Christian Assn., 215 A.D.2d 825, 826).
The court further erred in denying Haseley's cross motion seeking summary judgment dismissing the third-party complaint. Contrary to the court's determination, questions of fact do not exist whether Benchmark is an intended third-party beneficiary of the snow removal contract. "`[I]t is the intention of the promisee which is of primary importance in ascertaining whether a party is to be considered an intended beneficiary'" ( Key Intl. Mfg. v. Morse/Diesel, Inc., 142 A.D.2d 448, 455, quoting Goodman-Marks Assoc. v. Westbury Post Assoc., 70 A.D.2d 145, 148; see Peckham Rd. Corp. v. Town of Putnam Val., 218 A.D.2d 789, 790, appeal dismissed 87 N.Y.2d 912, lv denied in part and dismissed in part 88 N.Y.2d 867). The promisee here is ACG, and there is no evidence that ACG intended its contract with Haseley to benefit Benchmark ( see BIB Constr. Co. v. City of Poughkeepsie, 204 A.D.2d 947, 948). Benchmark's contention that the cross motion is premature because further discovery is required is raised for the first time on appeal and therefore is not properly before us ( see Connors v. Wilmorite, Inc., 225 A.D.2d 1040; see also Matter of Big Tree Assn. v. Grand Lodge, Ind. Order of Odd Fellows, 231 A.D.2d 903). In any event, Benchmark has "failed to demonstrate that discovery would give rise to an identifiable issue of fact" ( State of New York v County of Erie, 265 A.D.2d 853).