Opinion
Index No. 035152/2016 E
08-09-2019
ARLENE NEWMAN, Plaintiff, v. ADD-VENTURES BUILDING SERVICES, INC a/k/a ADD-VENTURES RESTORATION, INC and BELLEVELLE LANDSCAPING, INC., Defendants.
Unpublished Opinion
DECISION & ORDER
Rolf M. Thorsen, Judge
Plaintiff, Arlene Newman, commenced this action for personal injuries arising out of an incident that took place on or about January 18, 2016 at 11:30 a.m. when Plaintiff allegedly slipped on black ice in the driveway of her condominium unit at Amber Fields in Nanuet, New York. Defendant Add-Ventures Building Services, Inc. a/k/a Add-Ventures Restoration, Inc. (hereainafter "Add-Ventures") performed minor repair services when requested by the property management company and Bellevelle Landscaping, Inc. (hereinafter "Bellevelle") performed snow removal services pursuant to a contract. Both Defendants now separately move pursuant to CPLR 3212 for an Order granting summary judgment dismissing Plaintiff's complaint as against them as well as all crossclaims. The Court has considered the following papers on the motions, which the Court has consolidated for the purposes of this decision:
1. Add-Ventures' Notice of Motion (Motion Sequence No. 001), Affirmation in Support and Exhibits A through M attached thereto;
2. Bellevelle's Notice of Motion (Motion Sequence No. 002), Affirmation in Support and Exhibits A through I attached thereto;
3. Plaintiff's Affirmation in Opposition and Exhibits A and B attached thereto;
4. Add-Venture's Affirmation in Opposition;
5. Add-Ventures' Affirmation in Reply; and
6. Bellevelle's Affirmation in Reply and Exhibit A attached thereto.
Turning first to Add-Ventures motion for summary judgment, it generally does not create a duty of care toward a third party, the Court of Appeals, in Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140 (2002), described three circumstances in which a contracting party assumes a duty to persons outside the contract. These are: '(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." Haracz v. Cee Jay, Inc., 74 A.D.3d 1145, 1146 (2d Dept. 2010). Applied here, Add-Ventures established its entitlement to judgment as a matter of law. The evidence submitted, including the depositions of the parties and the invoice of- work performed by Add-Ventures to the roof of Plaintiff's neighbor's condominium in April 2014, were sufficient to establish Add-Ventures' prima facie burden. Specifically, Add-Ventures submitted Plaintiff's deposition testimony wherein she testified that she slipped on "black ice" and that she did not see the black ice on her driveway the day before the accident. Plaintiff further testified that, on the one hand, the black ice formed as a result of ice falling from the sky, and on the other hand, that the black ice formed due to the leaky gutter and hanging icicles on the roof. See, Add-Ventures Exhibit F at pp. 121-122, 152-154. In either scenario, Plaintiff's beliefs as to how the black ice formed on her driveway were purely speculative. See, Spinoccia v. Fairfield Bellmore Ave., 95 A.D.3d 993, 994 (2d Dept. 2012). In opposition, Plaintiff failed to raise a triable issue of fact. In fact, Plaintiff could not identify that Add-Ventures' alleged actions were the cause of her injuries without resorting to speculation. See, Troy v. Grosso, A.D.3d _, 2019 N.Y.App.Div. LEXIS 4987 (2d Dept. 2019) (Internal citations omitted).
With respect to Bellevelle's motion for summary judgment, it is a basic tenet of tort liability that "a finding of negligence must be based on the breach of a duty." Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138 (2002). Generally, that duty of care will not arise out of a contractual obligation giving rise to tort liability in favor of a third party. Id. In other words and as is relevant to the within action, "a limited contractual obligation to provide snow removal services does not render the contractor liable for the personal injuries of third parties." Rudloff v. Woodland Pond Condominium Assn., 109 A.D.3d 810 (2d Dept. 2013). As previously stated, three exceptions to this general rule exist: "(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) 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 Cont r s., 98 N.Y.2d 136, 138 [2002]; see also, Foster v. Herbert Slepoy Coro., 76 A.D.3d 210 (2d Dept. 2010); Gushin v. Whispering Hills Condominium I, 96 A.D.3d 721.
Applying the above principles to the within motion, Bellevelle has demonstrated its entitlement to judgment as a matter of law. In opposition, neither Plaintiff nor Add-Ventures has raised any issues of material fact that would warrant denial of Bellevelle's motion for summary judgment. Significantly, Plaintiff testified at her deposition that the cause of her fall was the black ice that covered her driveway that presumably came from the sky or from the leaky gutters and/or icicles on the roof and not from any work performed by Bellevelle. See, Bellevelle's Exhibit G at pp. 122, 154. Moreover, neither Plaintiff nor Add-Ventures raised a triable issue of fact as to whether Bellevelle "launched a force or instrument of harm" or that Plaintiff detrimentally relied on Bellevelle's performance. See, Bronstein v. Benderson Dev. Co., A.D.3d ___, 2018 N.Y.App.Div. LEXIS 8603 at *3-4 (2d Dept. 2018). See also, Lehman v. North Greenwich Landscaping, LLC, 65 A.D.3d 1291 (2d Dept. 2009); Foster v. Herbert Slepoy Corp., 76 A.D.3d at 215. Rather, pursuant to Plaintiff's own testimony, there was no rain or freezing rain the morning of her accident which would have required Bellevelle to perform any snow removal services pursuant to their contract. See, Bellevelle's Exhibit G at p. 69.
Based upon the foregoing, it is hereby
ORDERED that Add-Ventures' motion for summary judgment is granted thereby dismissing the complaint and all cross-claims asserted against it; and it is further
ORDERED that Bellevelle's motion for summary judgment is granted thereby dismissing the complaint and all cross-claims asserted against it; and it is further
ORDERED that all other arguments raised in the motion papers need not be addressed in light of the above.
The foregoing constitutes the Decision and Order of this Court.