Opinion
No. 031030/2019E
02-03-2021
LISA PALACIOS and ALAN PALACIOS, Plaintiffs, v. BON-AIRE PARK OWNER'S, INC., BON-AIRE PROPERTIES, INC.I ARCO MANAGEMENT" CORP. and JB LANDSCAPING, INC., Defendants.
Unpublished Opinion
To commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.
DECISION & ORDER
HON. ROLF M. THORSEN, A.J.S.C.
.Plaintiffs commenced this personal injury action arising out of a slip and fall incident that occurred in the parking lot of the cooperative complex where Plaintiffs reside. Defendant, JB Landscaping, Inc. (hereinafter "Defendant JB Landscaping)) moves pursuant to CPLR 3212 for an Order granting summary judgment. Defendants Bon-Aire Park Owner's, Inc. (hereinafter "Defendant Bon-Aire") and Arco Management Corp. (hereinafter "Defendant Arco Mgmt." and collectively "the Bon-Aire Defendants") also move for summary judgment. This Court has considered the following papers on the motions:
1. Defendant JB Landscapingss Notice of Motion (#001), Attorney Affirmation and Exhibits A through J submitted therewith, and Memorandum of Law;
2. The Bon Aire-Defendants' Notice of Motion (#002), Affirmation in Support and Exhibits A through T submitted therewith;
3. Plaintiffs' Affirmation in Opposition (#001) and Exhibits A through F submitted therewith;
4. Plaintiff's Affirmation in Opposition (#002) and Exhibits A and B submitted therewith;
5. Defendant JP Landscaping's Affirmation in Reply (#001); and
6. The Bon-Aire Defendants' Affirmation in Reply with Exhibits A and B submitted therewith (#002).
Plaintiffs reside in a cooperative complex in Suffern, New York. On March 8, 2018 at approximately 7:30 a.m., while walking to her husband's car, Plaintiff, Lisa Palacios (hereinafter "Plaintiff") slipped and fell in the parking lot. The previous day a winter storm occurred and approximately 19 inches of snow accumulated as a Result. The snow stopped falling at 10:00 p.m. the night before the incident. Defendant JB Landscaping, pursuant to a contract with Defendant Bon-Aire, is responsible for snow removal services at the cooperative complex. JB Landscaping is required to keep the driving lanes "passable" while the snow is falling. Once the .snow stops? JB Landscaping then clears the sidewalks and parking lots. In order for Defendant JB Landscaping to plow the parking lots, defendant Arco Mgmt., the' property management company sends a robocall to the Bon-Aire residents advising them to move their cars to the street so that the parking lot can be Plowed With respect to the subject incident, Defendant Arco Mgmt. Sent such a robocall to Plaintiffs various phone numbers at 8:26 am and 8-36 a.m. However, Plaintiff had already moved her car to the street" without incident prior to her fall.
Although in her deposition Plaintiff testified that the incident took place at around 8:30 a m,, her previously-served Bill of Particulars, the Slice Incident Report,, the ambulance report and the hospital admission report all indicate that the incident took place at around 7:30 a.m.
Defendant Bon-Aire is not entirely displaced from snow removal responsibilities as*the evidence indicates that buckets of salt are readily accessible to both the superintendent and the residents themselves.
It is well-settled that the proponent of a motion for summary judgment has "the burden of establishing, prima facie, that it neither created the snow and ice condition nor had actual or constructive notice of the condition." Smith v. Chris's First Preshyt Church of Hempstead, 93 A.D.3d 839 (2d Dept. 2012){internal citations omitted). The proponent may meet this burden "by presenting evidence that there was a storm in progress when the injured if plaintiff allegedly slipped and fell." Id. at 839-840 (Internal citations omitted). "Under the 'storm in progress' rule a property owner will not be held liable for accidents occurring as a result of the accumulation of snow or ice on its premises until an adequate period of time has passed following the cessation of the storm, within which time the owner has the opportunity to ameliorate the hazards caused by the storm." Id. at 840. What constitutes "an adequate period of time" . may be determined by the court on a motion for summary judgment. See, Valentine v City of New York, 57 N.Y.2d 932 (1982); see also, Bryant. v. Retail Prop. Trust, 186 A.D.3d 793 (2d Dept. 2020).
Applied here, the Court finds that Defendants cannot be held liable under the "storm in progress" rule as a sufficient period of time had not elapsed after the cessation of the storm to remove well over a foot If snow that had fallen the day before. See, e.g. Whitt v. st. John's Episcopal Hosp.. 258 A.D.2d 648 (2d Dept. 1999); Wei Wen Kie v. Ye Jian Yona. 111 A.D.3d 617, 618 (2d Dept. 2013 Defendants submitted the deposition testimony of the Plaintiffs, of John Balk, the owner of Defendant JB Landscaping, and of Dean Sterino, the property manager employed by Defendant Arco Mgmt., as well as the certified climatological data and expert affidavit, establishing that a major winter storm had produced 19 inches of snow the day before Plaintiff's incident and had only stopped falling at 10:00 p.m. the night before. Moreover, at the time Plaintiff's fall occurred, Defendant JB Landscaping had already plowed the "driving lanes” of the parking lot approximately 20 times during the night but was unable to plow the entire lot as the parked cars had not yet been moved to the street. Plaintiffs have failed to raise a triable issue of fact.
The evidence submitted established that once the Village of Suffern plowed the streets Defendant Arco Mgmt. would send a robocall to the Bon-Aire residents telling them they could and should relocate their cars to the street so that the parking lot could be cleared for plowing. Plaintiffs received this robocall at 8:26 a m and 8:36 a.m. on their respective phone numbers, i.e., after Plaintiff's alleged fall.
Moreover, with respect to Defendant JB Landscaping, it is well-settled that "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). 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) 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, 138 [2002]; See also Foster v. Herbert .Slepoy Corp., 76 A.D.3d 210 (2d Dept 2010); Gushin v. Whispering Hills Condominium I, 96 A.D.3d 721..
Applied here, there is no evidence that Defendant JB Landscaping's actions launched a force or instrument of harm, that Plaintiff detrimentally relied on the Defendant JB Landscaping's performance, or that the contract between Defendant Bon-Aire and Defendant JB Landscaping entirely displaced Bon-Aire from safely maintaining its property. See, Lehman v. North Greenwich Landscaping. LLC. 65 A.D.3d. 1291. (2d Dept. 2009); see also, Foster v Herbert Slepoy Corp., 76 A.D.3d at 215. Plaintiffs' contention .that Defendant JB Landscaping owed Plaintiffs a duty because it launched a force or instrument of harm by advising Defendant Arco Mgmt to make robocalls to the residents - is not supported by the record. The Court finds Plaintiffs' remaining arguments to be without merit.
Based upon the foregoing, it is hereby
ORDERED that Defendant JB Landscaping's motion for summary judgment (#001) is granted thereby dismissing the complaint against it; and it is further
ORDERED that the Bon-Aire Defendants' motion for summary judgment (#002) is granted thereby dismissing the complaint against them; and it is further
ORDERED that the complaint as against Defendant Bon-Aire Properties is dismissed without objection.
The foregoing constitutes the Decision and Order of this Court..