Opinion
26078
10-22-2019
Melinda J. COOK and Richard E. Cook, Plaintiffs, v. NORTH COUNTRY ACADEMY EXECUTIVE LLC and Nims Outdoor Services, Inc., Defendants.
Law Offices of Martin & Martin, Glens Falls (Michael S. Martin of counsel), for plaintiffs. Law Offices of M. Randolph Belkin, Latham (Derek Hayden of counsel), for North Country Academy Executive, LLC, defendant. Napierski, VanDenburgh, Napierski & O'Connor, L.L.P., Albany (Mark J. Dolan of counsel), for NIMS Outdoor Services, Inc., defendant.
Law Offices of Martin & Martin, Glens Falls (Michael S. Martin of counsel), for plaintiffs.
Law Offices of M. Randolph Belkin, Latham (Derek Hayden of counsel), for North Country Academy Executive, LLC, defendant.
Napierski, VanDenburgh, Napierski & O'Connor, L.L.P., Albany (Mark J. Dolan of counsel), for NIMS Outdoor Services, Inc., defendant.
Martin D. Auffredou, J.
Plaintiffs commenced this action seeking to recover damages for personal injuries sustained by plaintiff Melinda J. Cook ("plaintiff") on March 31, 2014, at approximately 7:10 AM, when she was caused to fall as a result of an unreasonably dangerous condition of ice and snow on the parking lot at premises located at 6 Willowbrook Road, Queensbury, New York ("the premises"). Plaintiff had traveled to the premises to drop off her grandson at a childcare center located at the premises.
Non-party NCA of QU Real Estate Holdings, LLC has owned the premises since October 9, 2007, and owned it on the date of plaintiff's accident. Prior to March 31, 2014, NCA of QU Real Estate Holdings, LLC leased the premises to North Country Academy of Queensbury, LLC ("NCAQ") for NCAQ to operate a childcare center at the premises. Defendant North Country Academy Executive, LLC ("NCAE") is the management company for seven childcare centers in the Capital Region of New York and does not own or maintain any real property.
At his deposition, William F. Johnson, Jr., one of the principals of NCAE, NCAQ and NCA of QU Real Estate Holdings, LLC and the managing member of NCAE, testified that North Country Academy of Queensbury, LLC is "the operating company."
Prior to the date of the accident, on or about October 15, 2012, non-party NCAQ entered into a Landscape Agreement ("the Agreement") with defendant NIMS Outdoor Services, Inc. ("NIMS"), for the period November 1, 2012 through November 1, 2014. The Agreement provided, as is relevant herein, that NIMS "shall plow the areas specified by the owner when there is two (2) inches of snowfall or ice accumulated. If there is an area that is unable to be plowed then it shall be shoveled and the ice shall be broken up and shoveled away." In addition, "[s]and/salt mix shall be applied to parking lot area when needed, including snow storms, sleet, and freezing rain." The customer determined that services would be triggered by a two inch accumulation of snow or ice. Chad Nims, the owner and President of NIMS, testified at his deposition that sanding and salting would not be performed if there was not an accumulation of two inches or more.
Plaintiffs allege that the accident was caused by defendants' negligence in maintenance of the parking lot. Plaintiffs also assert a cause of action for breach of warranty. In their bill of particulars, plaintiffs assert that they will also rely upon the doctrine of res ipsa loquitor to establish negligence.
Defendants each move separately for an order, pursuant to CPLR 3212, granting summary judgment, dismissing plaintiffs' complaint and any and all cross-claims. Plaintiffs cross-move for an order, granting leave to amend the pleadings nunc pro tunc to include as defendants NCA of QU Real Estate Holdings LLC and North Country Academy of Queensbury, LLC and striking defendant NCAE's answer, and precluding defendant NCAE from asserting the defense that it does not own the property at which plaintiff fell.
It is well settled that on a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact ( Friends of Thayer Lake LLC v. Brown , 27 NY3d 1039, 1043 [2016] ; Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP , 26 NY3d 40, 49 [2015] ). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (id. )
"Viewing the evidence ‘in the light most favorable to the non moving party,’ if the nonmoving party, nonetheless, fails to establish a material triable issue of fact, summary judgment for the movant is appropriate" (id. , quoting Ortiz v. Varsity Holdings, LLC , 18 NY3d 335, 339 [2011] ).
In its motion, NCAE contends that on the date of plaintiff's accident, it did not own, possess or control the premises or operate a childcare center at the premises. NCAE further claims that it has never contracted with any entity for winter maintenance at the premises. NCAE points out that, in their complaint, plaintiffs did not allege that NCAE owned, occupied, controlled or made special use of the area where plaintiff fell. NCAE further argues that even if plaintiffs could establish that it had some connection to the premises, there is no evidence that NCAE created or had notice of the alleged ice and, therefore, liability cannot be imposed upon NCAE.
It is well settled that " ‘[r]ecovery in a premises liability action is predicated on ownership, occupancy, control or special use of a property where a dangerous or defective condition exists’ " ( Wisdom v. Reoco, LLC , 162 AD3d 1380, 1381 [3d Dept 2018], quoting Martuscello v. Jensen , 134 AD3d 4, 8 [3d Dept 2015] [internal quotation marks, brackets and citation omitted]; see also e.g. Giglio v. Saratoga Care, Inc. , 117 AD3d 1143, 1144 [3d Dept 2014] ).
Stated another way, "[i]n the context of premises liability, a party owes a duty to take reasonable measures to protect others from dangerous conditions on the property only where that party owns, occupies or controls the property or makes a special use of it" ( Stevenson v. Saratoga Performing Arts Ctr., Inc. , 115 AD3d 1086, 1086-1087 [3d Dept 2014] ).
In its motion, NCAE demonstrated, through the submission of proof in admissible form, that it did not own, occupy or control, or make special use of, the premises where the fall occurred and had no responsibility to maintain the premises. Thus, NCAE met its burden of demonstrating entitlement to judgment as a matter of law. The burden then shifted to plaintiffs to demonstrate the existence of any issues of fact requiring a trial. Plaintiffs failed to meet their burden.
In their opposition, plaintiffs argue that NCAE's motion must be denied on several grounds. Initially, plaintiffs claim that NCAE, the lessee of the premises, North Country Academy of Queensbury, LLC, and the owner of the premises, NCA of QU Real Estate Holdings, LLC constitute a single integrated enterprise subject to single enterprise liability. In addition, plaintiffs contend that NCAE willfully failed to disclose information which ought to have been disclosed. Specifically, plaintiffs claim that NCAE "willfully, intentionally and fraudulently" failed to disclose that it does not own the premises but, rather, NCA of QU Real Estate Holdings, LLC is the property owner. Plaintiffs further argue that NCAE failed to timely assert the affirmative defense of lack of ownership of the premises and, as such, has waived that defense. Finally, plaintiffs assert that, pursuant to the doctrine of equitable estoppel, NCAE should be estopped from seeking summary judgment based upon lack of ownership of the premises.
Plaintiffs claim this argument is also relevant to their cross-motion to, inter alia , amend the pleadings nunc pro tunc and strike NCAE's answer.
The Court finds plaintiffs' argument of single enterprise liability unavailing. There is no evidence that NCAE exercised any direction or control over the childcare center or the property owner. Moreover, this case is distinguishable from Mangan v. Term. Transp. Sys. , 247 AD 853, 853 [3d Dept 1936], upon which plaintiffs rely, as NCAE is not the agent or instrumentality through which either the lessee of the premises, North Country Academy of Queensbury, LLC, or the owner of the premises, NCA of QU Real Estate Holdings, LLC, carried on their business.
In its answer, served on or about June 30, 2016, NCAE denied that it was in the business of "owning, operating, maintaining and supervising certain premises for daycare of children to the consuming public of the State of New York" and that it was doing business at the premises. By denying ownership in its answer, NCAE placed ownership of the property at issue and was not required to plead lack of ownership as an affirmative defense (see Warren v. Leone , 298 AD2d 980 [4th Dept 2002] ; see also Stevens v. Northern Lights Assoc. , 229 AD2d 1001, 1002 [4th Dept 1996] [defendant sufficiently raised issue of control of property by denial in answer and was not required to plead receivership as affirmative defense]; Facilities Dev. Corp. v. Miletta , 246 AD2d 869, 870 [3d Dept 1998] [by denying relevant allegations of complaint, defendant placed plaintiff on notice that matter was in dispute] ).
Moreover, NCAE did not fail to disclose that it did not own the premises. Plaintiffs failed to demand particulars regarding NCAE's denial of ownership or any documents related to ownership of the premises and did not demand that the witness produced to testify at a deposition on behalf of NCAE bring any documents to the deposition. NCAE served a bill of particulars on or about February 2, 2017, and a response to plaintiffs' combined discovery demands, on or about February 17, 2017, within the statute of limitations. Plaintiffs never served additional demands for discovery following service of NCAE's responses, nor did plaintiffs ever serve a Notice to Admit with respect to ownership of the premises.
There is no indication in the record that plaintiffs ever conducted a title search to determine ownership of the premises. The Court also notes that the public may search for information concerning real property located in Warren County, including the name and address of the owner, online (see https://public.warrencountyny.gov/home/rp.a5w).
More significantly, William Johnson, one of the principals of NCAQ and of NCA of QU Real Estate Holdings, LLC, clearly testified at his deposition, held on September 29, 2017, that NCAQ operates the subject childcare center and entered into the Agreement with NIMS and that NCA of QU Real Estate Holdings, LLC owns the property on which the subject childcare center is located. Further, in response to questioning by plaintiffs' counsel, Mr. Johnson reiterated that the named defendant, NCAE, is a management entity which does payroll, accounts receivable and accounts payable for all the operating companies, including NCAQ. Mr. Johnson stated that the two are separate corporations.
Mr. Johnson initially so testified in response to a question posed by counsel for NIMS and later confirmed this testimony in response to a question posed by plaintiffs' counsel.
In fact, plaintiffs' counsel cites to William Johnson's sworn deposition testimony and sworn affidavit in support of NCAE's motion on this point.
Thus, plaintiffs have been on notice since NCAE served it answer, or at the very latest, since Mr. Johnson testified, that the named defendant, NCAE, does not own the premises. Plaintiffs cannot claim to be surprised by this fact and cannot credibly claim to have only learned of this fact upon receipt of NCAE's motion for summary judgment.
Plaintiffs were not prevented from filing an action within the applicable statute of limitations due to their reasonable reliance on deception, fraud or misrepresentations by NCAE (see Putter v. N. Shore Univ. Hosp. , 7 NY3d 548, 552-553 [2006] ; Marincovich v. Dunes Hotels and Casinos, Inc. , 41 AD3d 1006, 1010 [3d Dept 2007] ). Further, plaintiffs cannot establish that NCAE's actions kept them from timely bringing suit against any other entity (see e.g. Zumpano v. Quinn , 6 NY3d 666, 674 [2006] ), nor can plaintiffs establish they lack knowledge of the true facts (see e.g. Rancich v. Cortland Coop. Ins. Co. , 204 AD2d 839, 840 [3d Dept 1994] ). As such, plaintiffs cannot rely upon the extraordinary remedy of equitable estoppel ( Pulver v. Dougherty , 58 AD3d 978, 979 [3d Dept 2009] ).
Plaintiffs have not demonstrated that material issues of fact exist with respect to their claim against NCAE. Therefore, NCAE's motion must be granted.
For the reasons set forth herein, plaintiffs' cross-motion to amend the pleadings nunc pro tunc must be denied. As set forth above, plaintiffs were aware as of September 29, 2017, at the latest, that the named defendant, NCAE, did not own the premises. Yet, plaintiffs did not move to amend the complaint until more than 18 months later, and then only after NCAE moved for summary judgment.
"While leave to amend a complaint ordinarily should be freely granted, lateness in making a motion to amend, coupled with the absence of a satisfactory excuse for the delay and prejudice to the opposing party, justifies denial of such a motion. Further, where a plaintiff files a note of issue certifying that the case is ready for trial and subsequently seeks to amend the complaint, a trial court's discretion to grant a motion to amend should be exercised with caution ( Bailey v. Vil. of Saranac Lake, Inc. , 100 AD3d 1089, 1090 [3d Dept 2012] [internal quotation marks, brackets and citations omitted] ).
Plaintiffs failed to demonstrate a satisfactory excuse for the delay in moving, via cross-motion, to amend the complaint, (1) 18 months after deposition testimony confirmed that the named defendant did not own the premises, (2) after the case has been placed on the trial calendar, and (3) after the statute of limitations had expired.
Plaintiffs argue that they should be permitted to amend their complaint to add a new defendant, although the statute of limitations has expired, pursuant to the "relation back" doctrine (see CPLR 203 [f] ). This argument fails.
In order for claims against NCA of QU Real Estate Holdings, LLC to relate back to claims asserted against NCAE, plaintiffs must satisfy three conditions: " ‘(1) both claims arose out of same conduct, transaction or occurrence, (2) the new party is ‘united in interest’ with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and (3) the new party knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well.’ " ( Buran v. Coupal , 87 NY2d 173, 178 [1995], quoting Brock v. Bua , 83 AD2d 61, 69 [2d Dept 1981] ; see also Zehnick v. Meadowbrook II Assoc. , 20 AD3d 793, 796 [3d Dept 2005], citing Buran and Brock ).
In this case, the first condition has clearly been satisfied. The claim asserted against NCAE and the claim plaintiffs seek to assert against NCA of QU Real Estate Holdings clearly arose from the same conduct, transaction or occurrence.
Given that NCAE and NCA of QU Real Estate Holdings, LLC share the same principals and the same insurance carrier, NCA of QU Real Estate Holdings, LLC knew or should have known that, but for a mistake by plaintiffs, the action would have been brought against that entity as well (see Zehnick , 20 AD3d at 796, citing Buran ). Moreover, in the Court's view, a review of the pleadings demonstrates that plaintiffs intended to sue the owner of the premises (see De Sanna v. Rockefeller Ctr., Inc. , 9 AD3d 596, 599 [3d Dept 2004] ) and NCAE could not have "reasonably concluded that the failure to sue within the limitations period meant that there was no intent to sue that [entity] at all ‘and that the matter has been laid to rest as far as [it] is concerned’ ( Buran , 87 NY2d at 181, quoting Brock , 83 AD2d at 70 ). Therefore, the second condition for application of the "relation back" doctrine has been satisfied.
However, plaintiffs have not met "the prong of the test which requires that the new party be united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits" ( Zehnick , 20 AD3d at 796 [internal quotation marks and citations omitted] ).
"Parties are united in interest when the interest of the parties in the subject-matter is such that they [will] stand or fall together and that judgment against one will similarly affect the other. A unity of interest has been found to exist where the defenses available will be identical, which occurs where one is vicariously liable for the acts of the other" ( De Sanna , 9 AD3d at 598 [internal brackets, quotation marks and citations omitted] ). Thus, "[a]lthough the parties might share a multitude of commonalities, including shareholders and officers, the unity of interest test will not be satisfied unless the parties share precisely the same jural relationship in the action at hand. Indeed, unless the original defendant and new party are vicariously liable for the acts of the other ... there is no unity of interest between them ( Zehnick , 20 AD3d at 796-797 [internal quotation marks and citations omitted] ).
The interests of NCAE and NCA of QU Real Estate Holdings, LLC in this litigation are not identical. The two entities will not stand or fall together and judgment against one will not similarly affect the other. The two entities are separate corporations and there is no evidence that either corporation is vicariously liable for the acts of the other. Further, the defenses available to each are not identical. For example, NCAE has successfully asserted as a defense to plaintiffs' claims that it is not the owner of the premises and as such, did not have any responsibility to maintain the premises and cannot be held liable to plaintiffs for an alleged dangerous condition on the premises.
Given that they cannot meet all three required conditions, plaintiffs cannot rely upon the "relation back" doctrine to amend their complaint to add NCA of QU Real Estate Holdings as a new defendant, after the statute of limitations has expired.
Therefore, for all of the foregoing reasons, plaintiffs' cross-motion must be denied.
In its motion, NIMS contends that it did not owe any duty to plaintiff and cannot be held liable in tort. NIMS further argues that the doctrine of res ipsa loquitor does not apply and that plaintiff does not have a cognizable claim against NIMS for breach of warranty.
"[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" ( Espinal v. Melville Snow Contrs. , 98 NY2d 136, 138 [2002] ).
"It is well-settled that a party that contracts with a property owner to provide snow and ice removal services cannot be liable to a third party who is injured on the property unless "(1) the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launche[d] a force or instrument of harm; (2) the plaintiff detrimentally relie[d] on the continued performance of the contracting party's duties[; or] (3) the contracting party has entirely displaced the other party's duty to maintain the premises safely" ( Espinal v. Melville Snow Contrs., 98 NY2d 136, 140, 773 NE2d 485, 746 NYS2d 120 [2002] [internal quotation marks and citation omitted]; see Baker v. Buckpitt, 99 AD3d 1097, 1098, 952 NYS2d 666 [2012] )." ( Hutchings v. Garrison Lifestyle Pierce Hill, LLC , 157 AD3d 1034, 1035 [3d Dept 2018] )
NIMS argues that none of the exceptions to the general rule, set forth in Espinal , apply in this case and, therefore, NIMS did not owe a duty to plaintiff. In support of its argument, NIMS offers the deposition testimony of plaintiff and representatives of both defendants, an affidavit from Chad Nims, co-owner of NIMS, and an affidavit of Howard Altschule, Certified Consulting Meteorologist.
Plaintiff testified that on the morning of her accident it was snowing, which was "the tail ending" of a snowstorm the day before. When she arrived at the premises, plaintiff observed one or two inches of snow covering the parking lot at the premises ("the parking lot"), as well as ice scattered throughout the lot. After arriving at the premises, plaintiff walked her grandson into the building. Her grandson slipped a bit walking in, but plaintiff did not. Plaintiff took a different route when walking back to her car. Plaintiff testified that she stepped from the sidewalk onto the pavement and had taken perhaps four steps when she slipped. When she got up, plaintiff observed ice, approximately two inches thick, with snow on top of it. Plaintiff did not know how long the ice had been present.
Plaintiff had not made any complaint about ice or snow in the parking lot prior to the accident, nor was she aware of any prior complaints about any aspect of the parking lot. Plaintiff was not aware of any complaints regarding the winter maintenance of parking lot nor was she aware of any falls at the location prior to the day of the accident. Plaintiff testified she has no knowledge of who NIMS is.
William Johnson testified at his deposition that, pursuant to the Agreement, if two or more inches of snowfall occurred, NIMS would snowplow the driveway at the premises, and if needed, add sand or salt to the parking lot, sidewalks and walkways. NIMS would also perform services if there was additional accumulation or the owner called NIMS and requested services. Mr. Johnson further testified that prior to the date of plaintiff's accident, he did not have any complaints regarding the work performed by NIMS and was satisfied that NIMS had complied with the terms of the Agreement.
In his affidavit in support of NIMS' motion, Chad Nims, the President and owner of NIMS, avers that the last time NIMS performed snow removal at the premises prior to plaintiff's accident was on March 20, 2014 (11 days prior to the accident). At that time, a NIMS' crew shoveled and plowed the sidewalk and parking lot. Mr. Nims further avers that no weather conditions occurred from March 20 through, and including, March 31, 2014 that required NIMS to perform snow removal services at the premises, pursuant to the Agreement.
In his affidavit. Howard Altschule, Certified Consulting Meteorologist, avers that a storm system caused approximately 1.5? to 2.0? of snow to accumulate on March 19 and 20, 2014 and there was no measurable snow accumulation between March 21, 2014 and March 27, 2014. Mr. Altschule further states that a storm system caused approximately 0.3? of snow/sleet and 0.27? of "liquid-equivalent precipitation" to accumulate on March 28, 2014. According to Mr. Altschule, periods of rain, snow and sleet occurred, with some occasional and extended lulls, from approximately 7:30 PM on March 29, 2014 through 12:18 AM on March 31, 2014 and "only ‘trace’ amounts of snow/sleet (defined as less than 0.1? and too light to measure) accumulated." Mr. Altschule further avers that "[n]o precipitation fell from approximately 12:18 AM through and beyond the time of the incident on March 31st, 2014."
Based on the meteorological data, Mr. Altschule concluded that at 7:10 AM on March 31, 2014, the sky was mostly cloudy and the air temperature was 34 degrees. In Mr. Altschule's opinion, plaintiff's testimony that snow was actively falling as she arrived at the premises "is not consistent with [his] findings or the official weather data which indicate that precipitation ended at approximately 12:18 AM on March 31, 2014." Finally, Mr. Altschule avers that "The last time that 2.0 inches or more of snow and/or ice accumulated at the incident location was on March 19-20, 2014 (approximately 11-12 days before the incident), when approximately 1.5?-2.0? of snow accumulated."
NIMS has offered proof in admissible form to demonstrate that it did not owe a duty to plaintiff, a non-contracting third-party. The burden thus shifted to plaintiffs to raise a material issue of fact requiring a trial.
In opposition, plaintiffs claim that NIMS assumed a duty of care to plaintiff and it breached that duty. Plaintiffs argue that all three of the so-called Espinal exceptions apply. Specifically, plaintiffs claim, at the very least, questions of fact exist with respect to whether NIMS negligently performed its obligations pursuant to the Agreement and thereby "created or exacerbated" the dangerous condition existing at the premises on the date of the accident. Plaintiffs further contend that plaintiff detrimentally relied upon the continued performance by NIMS under the Agreement. Finally, plaintiffs allege that NIMS has entirely displaced the property owner's duty to maintain the premises safely.
In order to successfully invoke the first exception, plaintiffs must demonstrate that defendants "left the premises in a more dangerous condition than [it] found them or, launched a force or instrument of harm that caused h[im] to fall and be injured" ( Gibson v. Dynaserv Indus., Inc. , 88 AD3d 1135, 1136 [3d Dept 2011] [internal quotation marks and citations omitted] ). "A snow removal contractor who ‘creates or exacerbates’ a harmful condition may generally be said to have ‘launched’ it" ( Espinal , 98 NY2d at 142-143 ).
Plaintiffs have offered no evidence whatsoever to demonstrate NIMS "launched a force or instrument of harm." Rather, plaintiffs' argument appears to be based upon its assertion that NIMS breached the Agreement by failing to plow, sand and/or salt on the date of plaintiff's accident. This alleged failure "would constitute nonfeasance on defendant's part rather than the affirmative negligence required to constitute creation of a dangerous condition" ( DiGrazia v. Lemmon , 28 AD3d 926, 928 [3d Dept 2006] [internal citations omitted]; compare Hannigan v. Staples, Inc. , 137 AD3d 1546, 1549 [3d Dept 2016] [question of fact existed as to whether contractor negligently created dangerous condition by piling chunks of ice against building which then melted and refroze into patch of ice on which plaintiff allegedly slipped] ). As such, plaintiffs "fail[ed] to raise a material question of fact, inasmuch as the evidence demonstrates only that defendant[ ] may have failed to clear all of the ice and snow, a fact that does not constitute the affirmative creation of a dangerous condition" ( Hutchings , 157 AD3d at 1036 ).
With respect to the second exception, plaintiffs have failed to raise an issue of fact concerning detrimental reliance. Plaintiff admitted at her deposition that she never made any complaint about ice or snow in the parking lot prior to the accident and, more importantly, that she has no knowledge of who NIMS is. Further, no evidence was offered to demonstrate that plaintiff had any knowledge of the existence of the Agreement. "[N]o evidence has been presented either that plaintiff knew that defendant was responsible for ice and snow removal on the premises or that she, in particular, as opposed to the community at large, was an intended beneficiary of the obligations that defendant assumed pursuant to this contract" ( Gibson , 88 AD3d at 1136-37, citing Espinal and Foster v. Herbert Slepoy Corp. , 76 AD3d 210, 215 [2d Dept 2010] ).
Finally, plaintiffs have failed to raise a triable issue of fact regarding whether NIMS has entirely displaced the property owner's duty to maintain the premises safely. As set forth herein, NIMS was required to provide services when two or more inches of snow or ice accumulated. The entity with which NIMS contracted, North Country Academy of Queensbury, LLC, specified the areas to be plowed and determined the amount of accumulation which would trigger performance of services by NIMS. Further, that entity could call NIMS to request services.
"Where the express terms of the contract provide that a contractor is obligated to plow only when snow accumulation exceeds a certain level, the Court of Appeals has held that such ‘contractual undertaking is not the type of "comprehensive and exclusive" property maintenance obligation’ that would entirely displace a landlord's or property manager's duty to ‘maintain the premises safely’ ( Espinal v. Melville Snow Contrs. , 98 NY2d at 141 ; see Palka v. Servicemaster Mgt. Servs. Corp. , 83 NY2d 579, 584, 634 NE2d 189, 611 NYS2d 817 [1994] )" ( Henriquez v. Inserra Supermarkets, Inc. , 89 AD3d 899, 901-902 [2d Dept 2011] ).
While NIMS "retained some independent authority, [the Court] cannot conclude that the agreement ‘displaced entirely’ [the owner]'s duty to maintain the property" ( Hutchings , 157 AD3d at 1036 ; see also Kozak v. Broadway Joe's , 296 AD2d 683, 684-85 [3d Dept 2002] [snow plowing not comprehensive and exclusive property maintenance obligation; pursuant to express terms of snow plowing contract, contractor responsible for monitoring weather conditions and only plowing when accumulations reached approximately two inches] ).
Plaintiffs failed to raise a material issue of fact requiring a trial with respect to any of the exceptions set forth in Espinal . Therefore, the general rule applies and NIMS cannot be held liable in tort to plaintiff who was not a party to the Agreement. As such, NIMS' motion must be granted.
In its motion, defendant NIMS also contends that plaintiffs cannot rely upon the doctrine of res ipsa loquitor . In their opposition, plaintiffs do not address this issue or offer any argument that the doctrine applies. Plaintiffs' failure to address this issue indicates an intention to abandon this claim as a basis for liability ( Perez v. Folio House, Inc. , 123 AD3d 519, 520 [1st Dept 2014] ; Gary v. Flair Beverage Corp. , 60 AD3d 413, 413 [1st Dept 2009] ).
In any event, plaintiffs' reliance upon the doctrine fails and the claim must be dismissed on the merits.
"To establish an inference of negligence pursuant to res ipsa loquitur, ‘(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff’ ( Morejon v. Rais Constr. Co. , 7 NY3d 203, 209, 851 N.E.2d 1143, 818 N.Y.S.2d 792 [2006] [internal quotation marks and citations omitted] ). "Only when these essential elements have been established, after the plaintiff has first demonstrated the nature of the instrumentality which caused the injury and its connection with the defendant, does a prima facie case of negligence exist’ ( Dermatossian v. New York City Tr. Auth. , 67 NY2d 219, 227, 492 N.E.2d 1200, 501 N.Y.S.2d 784 [1986] [citations omitted] )." ( Greater Binghamton Dev., LLC v. Stellar 83 Ct., LLC , 173 AD3d 1512, 1512-13 [3d Dept 2019].)
The Court cannot "agree with plaintiff[s] that the doctrine of res ipsa loquitur is applicable here, given the possibility that plaintiff's fall was caused by her own misstep" ( Anderson v. Skidmore Coll. , 94 AD3d 1203, 1205 [3d Dept 2012], citing Cortes v. Central El., Inc. , 45 AD3d 323, 324 [1st Dept 2007] ["[p]laintiff's reliance on the doctrine of res ipsa loquitor is misplaced since plaintiff's fall could have occurred in the absence of negligence and could have been caused by a misstep on his part"] [internal citations omitted] ).
Finally, plaintiffs' cause of action for breach of warranty must be dismissed. By not offering any argument on this issue in its opposition, plaintiffs have abandoned this claim as a basis for liability ( Perez , 123 AD3d at 520 ; Gary , 60 AD3d at 413 ) and, in any event, the claim must be dismissed on the merits, as "there is no cause of action for breach of warranty where the defendant has only provided a service" ( Gutarts v. Fox , 104 AD3d 457, 459 [1st Dept 2013], citing Aegis Productions, Inc. v. Arriflex Corp. of Am. , 25 AD2d 639, 639 [1st Dept 1966] ["Warranties are limited to sales of goods. No warranty attaches to the performance of a service."]; see also New York Helicopter Charter, Inc. v. Borneman , 168 AD3d 509, 509 [1st Dept 2019] [breach of warranty claim dismissed because repairs made on subject equipment were services and not sale, citing Gutarts and Aegis ] ). "Rather, ‘[i]f [services are] performed negligently, the cause of action accruing is for that negligence. Likewise, if it constitutes a breach of contract, the action is for that breach’ " ( Mallards Dairy, LLC v. E & M Engrs. & Surveyors, P.C. , 71 AD3d 1415, 1417 [4th Dept 2010], quoting Aegis , 25 AD2d at 639 ).
The remaining arguments raised by the parties have been examined and found to be unavailing. Any requested relief not specifically addressed herein has nonetheless been considered and is hereby denied.
Accordingly, it is hereby
ORDERED that defendant NCAE's motion for summary judgment is granted; and it is further
ORDERED that defendant NIMS' motion for summary judgment is granted; and it is further
ORDERED that plaintiffs' cross-motion is denied; and it is further
ORDERED that plaintiffs' complaint is dismissed.
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The within constitutes the Decision and Order of this Court.
Signed this 22nd day of October, 2019, at Lake George, New York.
List of papers considered:
the affirmation of Derek Hayden, Esq., dated February 14, 2019, with exhibits;
the affidavit of William H. Johnson, Jr., sworn to January 14, 2019, with exhibit;
the affidavit of Mark J. Dolan, Esq., sworn to February 14, 2019, with exhibits;
the affidavit of Chad E. Nims, sworn to January 11, 2019, with exhibits;
the affidavit of Howard Altschule, CCM, sworn to February 6, 2019, with exhibits;
defendant NIMS' memorandum of law, dated February 14, 2019;
the affidavit of Michael S. Martin, Esq., sworn to April 9, 2019, with exhibits, in opposition to NCAE's motion;
the affidavit of Michael S. Martin, Esq., sworn to April 9, 2019, with exhibits, in opposition to NIMS' motion;
the affidavit of Melinda Cook, sworn to April 2, 2019;
the affidavit of Michael S. Martin, Esq., sworn to April 9, 2019, with exhibits, in support of plaintiffs' cross-motion;
the affirmation of Derek L. Hayden, Esq., dated April 17, 2019, with exhibits; and
the affirmation of Mark J. Dolan, Esq., dated April 18, 2019.
The Court is filing the original Decision and Order together with the original papers in the Washington County Clerk's Office. The Court is also providing all counsel with a copy of the Decision and Order; such delivery does not constitute service with notice of entry.