September 11, 2013
Ernest Rudloff, et al., appellants,
Woodland Pond Condominium Association, et al., respondents Index No. 4188/10
Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, New York, N.Y. (Thomas K. Wittig of counsel), for appellants.
Thomas M. Bona, P.C., White Plains, N.Y. (Thomas M. Bona and Michael Kestenbaum of counsel), for respondent Woodland Pond Condominium Association.
Cascone & Kluepfel, LLP, Garden City, N.Y. (Michael T. Reagan of counsel), for respondent Lemp Landscapers, Inc.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, LEONARD B. AUSTIN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Adams, J.), dated January 25, 2012, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them, and denied the plaintiffs' cross motion for summary judgment on the complaint.
ORDERED that the order is affirmed, with one bill of costs.
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 (see Lubell v Stonegate at Ardsley Home Owners Assn., Inc., 79 A.D.3d 1102, 1103; Wheaton v East End Commons Assoc., LLC, 50 A.D.3d 675, 677). However, in Espinal v Melville Snow Contrs. (98 N.Y.2d 136, 140), the Court of Appeals recognized that exceptions to this rule apply (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches 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 another party's duty to maintain the premises safely.
Contrary to the plaintiffs' contentions, the defendant Lemp Landscapers, Inc. (hereinafter Lemp), made a prima facie showing of its entitlement to judgment as a matter of law by offering proof that the injured plaintiff was not a party to its snow removal contract with the defendant Woodland Pond Condominium Association (hereinafter Woodland), and that it thus owed no duty of care to the injured plaintiff (see Knox v Sodexho Am., LLC, 93 A.D.3d 642; Henriquez v Inserra Supermarkets, Inc., 89 A.D.3d 899, 901; Lubell v Stonegate at Ardsley Home Owners Assn., Inc., 79 A.D.3d at 1103; Foster v Herbert Slepoy Corp., 76 A.D.3d 210, 214). Since the plaintiffs did not allege facts in their complaint or bill of particulars which would establish the possible applicability of any of the Espinal exceptions, Lemp, in establishing its prima facie entitlement to judgment as a matter of law, was not required to affirmatively demonstrate that these exceptions did not apply (see Knox v Sodexho Am., LLC, 93 A.D.3d 642).
In opposition to Lemp's prima facie showing, the plaintiffs offered no evidence to support their contentions that Lemp launched a force or instrument of harm by creating or exacerbating the icy condition that allegedly caused the plaintiff Ernest Rudloff's fall (see Fung v Japan Airlines Co., Ltd., 9 N.Y.3d 351, 361; Knox v Sodexho Am., LLC, 93 A.D.3d at 642-643; Henriquez v Inserra Supermarkets, Inc., 89 A.D.3d at 902; Quintanilla v John Mauro's Lawn Serv., Inc., 79 A.D.3d 838, 839; Foster v Herbert Slepoy Corp., 76 A.D.3d at 215; Castro v Maple Run Condominium Assn., 41 A.D.3d 412, 413-414). By merely plowing the snow in accordance with the contract and leaving some residual snow or ice on the plowed area, Lemp cannot be said to have created a dangerous condition and thereby launched a force or instrument of harm. Moreover, a claim that a contractor exacerbated an existing condition requires some showing that the contractor left the premises in a more dangerous condition than he or she found them (see Foster v Herbert Slepoy Corp., 76 A.D.3d at 215). Therefore, even if Lemp failed to sand or salt the roadway on which the injured plaintiff fell, the plaintiffs have offered nothing more than speculation that the failure to perform that duty rendered the property less safe than it was before Lemp started its work (see Church v Callanan Indus., 99 N.Y.2d at 112; Foster v Herbert Slepoy Corp., 76 A.D.3d at 215).
Similarly, in opposition to Lemp's prima facie showing, the plaintiffs failed to raise a triable issue of fact as to whether the subject snow removal contract was a comprehensive and exclusive agreement which entirely displaced the owner's duty to maintain the premises in a safe condition (see Espinal v Melville Snow Contrs., 98 N.Y.2d at 141; Foster v Herbert Slepoy Corp., 76 A.D.3d at 215; Linarello v Colin Serv. Sys., Inc., 31 A.D.3d 396, 397). Likewise, the plaintiffs' claims that the injured plaintiff detrimentally relied upon Lemp's proper performance of its contractual duties is unavailing, since the injured plaintiff's deposition testimony establishes that he did not detrimentally rely upon any performance by Lemp, but rather, that he relied on his own observations of the condition of the roadway as it existed on the morning of his accident (see Dorestant v Snow, Inc., 274 A.D.2d 542; Bugiada v Iko, 274 A.D.2d 368).
Accordingly, the Supreme Court properly granted Lemp's motion for summary judgment dismissing the complaint insofar as asserted against it.
A real property owner, or a party in possession or control of real property, will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive notice of it (see Cantwell v Fox Hill Community Assn., Inc., 87 A.D.3d 1106; Crosthwaite v Acadia Realty Trust, 62 A.D.3d 823; Abbattista v King's Grant Master Assn., Inc., 39 A.D.3d 439; Nielsen v Metro-North Commuter R.R. Co., 30 A.D.3d 497; Zabbia v Westwood, LLC, 18 A.D.3d 542). Woodland established its entitlement to judgment as a matter of law by submitting evidence sufficient to demonstrate that it did not create or have actual or constructive notice of the snow or ice that allegedly caused the injured plaintiff to fall (see Cantwell v Fox Hill Community Assn., Inc., 87 A.D.3d at 1106; Robinson v Trade Link Am., 39 A.D.3d 616; Murphy v 136 N. Blvd. Assoc., 304 A.D.2d 540). In opposition, the plaintiffs failed to raise a triable issue of fact (see Connelly v Shop Rite Supermarkets, Inc., 38 A.D.3d 588; Anderson v Central Val. Realty Co., 300 A.D.2d 422). Accordingly, the Supreme Court properly granted Woodland's motion for summary judgment dismissing the complaint insofar as asserted against it.
For the same reasons, the Supreme Court properly denied the plaintiffs' cross motion for summary judgment on the complaint.
MASTRO, J.P., BALKIN, HALL and AUSTIN, JJ., concur.