Opinion
2017–07378 Index No. 2049/14
12-19-2018
Natalie BRONSTEIN, Appellant, v. BENDERSON DEVELOPMENT COMPANY, LLC, et al., Respondents.
Neimark & Neimark LLP, New City, N.Y. (Ira H. Lapp of counsel), for appellant. Marc D. Orloff, P.C., Goshen, N.Y. (Dennis J. Mahoney III of counsel), for respondents.
Neimark & Neimark LLP, New City, N.Y. (Ira H. Lapp of counsel), for appellant.
Marc D. Orloff, P.C., Goshen, N.Y. (Dennis J. Mahoney III of counsel), for respondents.
REINALDO E. RIVERA, J.P., MARK C. DILLON, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Putnam County (James T. Rooney, J.), dated April 26, 2017. The order granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants Benderson Development Company, LLC, and Fitzgerald Family, LLC, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
On the morning of January 15, 2014, the plaintiff allegedly slipped and fell on ice in the parking lot of a strip mall in Patterson. The plaintiff commenced this action to recover damages for personal injuries against the defendant Benderson Development Company, LLC (hereinafter Benderson), which managed the premises, the defendant Fitzgerald Family, LLC, (hereinafter Fitzgerald), one of the owners of the premises, and the defendant Amaxx Cameon Landscaping, Inc. (hereinafter Amaxx), which provided snow/ice removal services at the premises. The defendants moved for summary judgment dismissing the complaint. With respect to Benderson and Fitzgerald, the defendants argued those defendants neither created the alleged ice condition that caused the plaintiff to fall nor had notice of it. With respect to Amaxx, the defendants argued that Amaxx did not owe the plaintiff a duty of care by virtue of its limited snow/ice removal contract with Benderson. The Supreme Court granted the motion, and the plaintiff appeals.
"As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties" ( Rudloff v. Woodland Pond Condominium Assn., 109 A.D.3d 810, 810, 971 N.Y.S.2d 170 ; see Diaz v. Port Auth. of N.Y. & NJ, 120 A.D.3d 611, 990 N.Y.S.2d 882 ; Lubell v. Stonegate at Ardsley Home Owners Assn., Inc., 79 A.D.3d 1102, 1103, 915 N.Y.S.2d 103 ). However, the Court of Appeals has recognized three exceptions to the general rule: "(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" ( Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [internal quotation marks and citations omitted] ).
Here, the defendants established, prima facie, that Amaxx did not owe the plaintiff a duty of care by offering proof that the plaintiff was not a party to the snow/ice removal contract between Amaxx and Benderson (see Koslosky v. Malmut, 149 A.D.3d 925, 926, 52 N.Y.S.3d 400 ; Leibovici v. Imperial Parking Mgt. Corp., 139 A.D.3d 909, 910, 33 N.Y.S.3d 312 ; Bryan v. CLK–HP 225 Rabro, LLC, 136 A.D.3d 955, 956, 26 N.Y.S.3d 207 ; Ankin v. Spitz, 129 A.D.3d 1001, 1003, 12 N.Y.S.3d 250 ; Javid v. Sclafmore Constr., 117 A.D.3d 907, 907–908, 985 N.Y.S.2d 893 ; Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226 ). Contrary to the plaintiff's contention, since the pleadings did not allege facts which would establish the applicability of any of the Espinal exceptions, the defendants were not required to affirmatively demonstrate that these exceptions did not apply in order to establish their prima facie entitlement to judgment as a matter of law with respect to Amaxx (see Koslosky v. Malmut, 149 A.D.3d at 926, 52 N.Y.S.3d 400 ; Leibovici v. Imperial Parking Mgt. Corp., 139 A.D.3d at 910, 33 N.Y.S.3d 312 ; Bryan v. CLK–HP 225 Rabro, LLC, 136 A.D.3d at 956, 26 N.Y.S.3d 207 ; Ankin v. Spitz, 129 A.D.3d at 1003, 12 N.Y.S.3d 250 ; Javid v. Sclafmore Constr., 117 A.D.3d at 907–908, 985 N.Y.S.2d 893 ; Foster v. Herbert Slepoy Corp., 76 A.D.3d at 214, 905 N.Y.S.2d 226 ).
In opposition, the plaintiff failed to raise a triable issue of fact as to whether Amaxx launched a force or instrument of harm (see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 142, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). "A snow removal contractor cannot be held liable for personal injuries ‘on the ground that the snow removal contractor's passive omissions constituted the launch of a force or instrument of harm, where there is no evidence that the passive conduct created or exacerbated a dangerous condition’ " ( Somekh v. Valley Natl. Bank, 151 A.D.3d 783, 786, 57 N.Y.S.3d 487, quoting Santos v. Deanco Servs., Inc., 142 A.D.3d 137, 138, 35 N.Y.S.3d 686 ; see Rudloff v. Woodland Pond Condominium Assn., 109 A.D.3d at 811, 971 N.Y.S.2d 170 ).
The defendants, however, failed to establish, prima facie, that Benderson and Fitzgerald did not have constructive notice of the alleged ice condition that allegedly caused the plaintiff to fall. A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Ross v. Half Hollow Hills Cent. Sch. Dist., 153 A.D.3d 745, 746, 60 N.Y.S.3d 323 ; Castillo v. Silvercrest, 134 A.D.3d 977, 24 N.Y.S.3d 86 ; Cuillo v. Fairfield Prop. Servs., L.P., 112 A.D.3d 777, 778, 977 N.Y.S.2d 353 ; Mignogna v. 7–Eleven, Inc., 76 A.D.3d 1054, 908 N.Y.S.2d 258 ). This burden cannot be satisfied merely by pointing out gaps in the plaintiff's case, as the defendants did here (see Plotits v. Houaphing D. Chaou, LLC, 81 A.D.3d 620, 621, 915 N.Y.S.2d 626 ; Martinez v. Khaimov, 74 A.D.3d 1031, 1033, 906 N.Y.S.2d 274 ; Baines v. G & D Ventures, Inc., 64 A.D.3d 528, 529, 883 N.Y.S.2d 256 ; see also Musso v. Macray Movers, Inc., 33 A.D.3d 594, 595, 822 N.Y.S.2d 305 ). The defendants failed to show what the accident site actually looked like within a reasonable time after the cessation of the prior snowstorm and what the accident site actually looked like within a reasonable time prior to the incident. The defendants also failed to submit any meteorological data to show that the alleged ice condition that caused the plaintiff to fall was not the product of a prior storm.
Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against Benderson and Fitzgerald, regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). However, we agree with the Supreme Court's determination to grant that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against Amaxx.
RIVERA, J.P., DILLON, COHEN and IANNACCI, JJ., concur.