Opinion
805 CA 18–02130
09-27-2019
Timothy GOVENETTIO, Plaintiff-Appellant, v. DOLGENCORP OF NEW YORK, INC., Individually and Doing Business as Dollar General, Dollar General Corporation, Bhatti Propertys Inc., and Kimberly Fitzgerald, Individually and Doing Business as Forever Green Property Maintenance, Defendants-Respondents.
SHAW & SHAW, P.C., HAMBURG (LEONARD D. ZACCAGNINO OF COUNSEL), FOR PLAINTIFF–APPELLANT. GOERGEN, MANSON & MCCARTHY, BUFFALO (KEVIN LOFTUS OF COUNSEL), FOR DEFENDANTS–RESPONDENTS DOLGENCORP OF NEW YORK, INC., INDIVIDUALLY AND DOING BUSINESS AS DOLLAR GENERAL, DOLLAR GENERAL CORPORATION, AND BHATTI PROPERTYS INC. KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (JUSTIN HENDRICKS OF COUNSEL), FOR DEFENDANT–RESPONDENT KIMBERLY FITZGERALD, INDIVIDUALLY AND DOING BUSINESS AS FOREVER GREEN PROPERTY MAINTENANCE.
SHAW & SHAW, P.C., HAMBURG (LEONARD D. ZACCAGNINO OF COUNSEL), FOR PLAINTIFF–APPELLANT.
GOERGEN, MANSON & MCCARTHY, BUFFALO (KEVIN LOFTUS OF COUNSEL), FOR DEFENDANTS–RESPONDENTS DOLGENCORP OF NEW YORK, INC., INDIVIDUALLY AND DOING BUSINESS AS DOLLAR GENERAL, DOLLAR GENERAL CORPORATION, AND BHATTI PROPERTYS INC.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (JUSTIN HENDRICKS OF COUNSEL), FOR DEFENDANT–RESPONDENT KIMBERLY FITZGERALD, INDIVIDUALLY AND DOING BUSINESS AS FOREVER GREEN PROPERTY MAINTENANCE.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the cross motion and reinstating the complaint against defendants Dolgencorp of New York, Inc., individually and doing business as Dollar General, Dollar General Corporation, and Bhatti Propertys Inc., and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries that he sustained when, at between 5:00 p.m. and 6:00 p.m., he slipped and fell in the parking lot of a Dollar General store that was leased to defendant Dolgencorp of New York, Inc., individually and doing business as Dollar General, from defendant Bhatti Propertys Inc. Contrary to plaintiff's contention, Supreme Court properly granted the motion of defendant Kimberly Fitzgerald, individually and doing business as Forever Green Property Maintenance (Forever Green), for summary judgment dismissing the complaint against her. Forever Green is a snow removal company that was contractually responsible for plowing snow from the parking lot. "[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 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). Although there are three well-established exceptions to that rule (see id. at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ), plaintiff did not allege facts in his complaint or bill of particulars that would establish the applicability of any of those exceptions, and thus Fitzgerald was not required to affirmatively negate the possible application of any of them in order to meet her initial burden (see Baker v. Buckpitt , 99 A.D.3d 1097, 1099, 952 N.Y.S.2d 666 [3d Dept. 2012] ; Sniatecki v. Violet Realty, Inc. , 98 A.D.3d 1316, 1320, 951 N.Y.S.2d 628 [4th Dept. 2012] ). Instead, Fitzgerald had to demonstrate only that plaintiff was not a party to the snow removal contract and that she therefore owed no duty to him, which she accomplished by submitting a copy of the contract (see Baker , 99 A.D.3d at 1099, 952 N.Y.S.2d 666 ). In opposition, plaintiff failed to raise an issue of fact with respect thereto (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
We agree with plaintiff, however, that the court erred in granting the cross motion of the remaining defendants (defendants) for summary judgment dismissing the complaint against them. A defendant seeking to avail itself of the storm in progress doctrine meets its prima facie burden by establishing as a matter of law that there was a storm in progress at the time of the accident (see Alvarado v. Wegmans Food Mkts., Inc. , 134 A.D.3d 1440, 1440, 21 N.Y.S.3d 515 [4th Dept. 2015] ; Glover v. Botsford , 109 A.D.3d 1182, 1183, 971 N.Y.S.2d 771 [4th Dept. 2013] ). The doctrine applies in situations where there are severe winter conditions, as well as where there is " ‘less severe, yet still inclement, winter weather’ " ( Glover , 109 A.D.3d at 1184, 971 N.Y.S.2d 771 ), but it does not apply when the accumulation of snow is "negligible" ( Patricola v. General Motors Corp. , 170 A.D.3d 1506, 1507, 95 N.Y.S.3d 672 [4th Dept. 2019] ). Here, defendants submitted the affidavit of a meteorologist, who opined that one-tenth of an inch of snow fell after 3:30 p.m. on the day in question, and who relied in part on winter weather advisories that predicted, among other things, snow and freezing rain between 3:00 p.m. and 11:00 p.m. in several counties, including the one where the store is located. In addition, defendants submitted the deposition testimony of plaintiff, who testified that snow and rain had been predicted that day, but during the time leading up to his fall it was merely overcast. Thus, defendants' own submissions raise an issue of fact whether there was a storm in progress at the time of the fall (see Patricola , 170 A.D.3d at 1507, 95 N.Y.S.3d 672 ; cf. Witherspoon v. Tops Mkts., LLC , 128 A.D.3d 1541, 1541, 8 N.Y.S.3d 843 [4th Dept. 2015] ). Furthermore, defendants submitted the deposition testimony of an assistant store manager, who testified that there were "a few" "different" "slippery spots" in the parking lot when she arrived for her shift at 2:00 p.m. on the day of plaintiff's fall, thus raising issues of fact whether the slippery condition preexisted the alleged storm (see generally Wrobel v. Tops Mkts., LLC , 155 A.D.3d 1591, 1592, 63 N.Y.S.3d 633 [4th Dept. 2017] ; Alvarado , 134 A.D.3d at 1440, 21 N.Y.S.3d 515 ), and whether defendants had actual or constructive notice of the slippery condition (see Patricola , 170 A.D.3d at 1507, 95 N.Y.S.3d 672 ). We therefore modify the order by denying defendants' cross motion and reinstating the complaint against them (see generally Brinson v. Geneva Hous. Auth. , 45 A.D.3d 1397, 1398, 844 N.Y.S.2d 799 [4th Dept. 2007] ).