CAROLE A. HUTCHINGS et al., Appellants,
GARRISON LIFESTYLE PIERCE HILL, LLC, et al., Defendants, and CENOVA, INC., Respondent, and A GREAT CHOICE LAWNCARE AND LANDSCAPING, LLC, Respondent- Appellant.
Calendar Date: November 13, 2017
Hinman, Howard and Kattell, LLP, Binghamton (Alexander D.
Racketa of counsel), for appellants.
Sovik, Kendrick & Sugnet, PC, Syracuse (Brady J.
O'Malley of counsel), for respondent.
Williamson, Clune & Stevens, Ithaca (John H. Hanrahan 3d
of counsel), for respondent-appellant.
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Pritzker,
MEMORANDUM AND ORDER
from an order of the Supreme Court (Reynolds Fitzgerald, J.),
entered June 6, 2016 in Broome County, which, among other
things, granted motions by defendants A Great Choice Lawncare
and Landscaping, LLC and Cenova, Inc. for summary judgment
dismissing the complaint against them.
January 4, 2012, plaintiff Carole A. Hutchings was injured
when she fell on ice in a parking lot on property managed by
defendant Levin Management Properties and/or defendant Levin
Properties, L.P. (hereinafter collectively referred to as
Levin) and owned by defendants Garrison Lifestyle Pierce
Hill, LLC and/or defendant Garrison Investment Group, LP.
Levin contracted with defendant Cenova, Inc. to perform snow
and ice removal services and, on January 3, 2012, defendant A
Great Choice Lawncare and Landscaping, LLC applied salt to
the parking lot pursuant to its subcontract with Cenova for
snow and ice removal. Hutchings and her spouse, derivatively,
commenced this negligence action seeking damages for the
injuries she sustained. Following joinder of issue, Cenova
moved for summary judgment dismissing the complaint and
granting a cross claim that it asserted against Great Choice
for indemnification. Great Choice cross-moved for summary
judgment dismissing the complaint and Cenova's cross
claim. Supreme Court granted Cenova's motion and Great
Choice's cross motion and granted summary judgment in
Cenova's favor on its indemnification claim against Great
Choice. Plaintiff and Great Choice now appeal.
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 N.Y.2d 136, 140
 [internal quotation marks and citation omitted];
see Baker v Buckpitt, 99 A.D.3d 1097, 1098 ).
Supreme Court determined that Cenova and Great Choice
(hereinafter collectively referred to as defendants) were
entitled to summary judgment in their favor. On this appeal,
plaintiffs do not dispute the court's determination with
regard to the sufficiency of defendants' submissions;
instead, they contend that the court erred because plaintiffs
raised questions of fact with regard to the first and third
exceptions described in Espinal.
opposition to defendants' submissions, plaintiffs claimed
that Hutchings slipped and fell on a patch of ice that formed
when snow and ice melted and refroze in a depression on the
surface of the parking lot. In our view, Supreme Court
properly determined that the third Espinal exception
was not applicable. On this issue, plaintiffs rely on certain
provisions in the agreement between Cenova and Levin that
granted Cenova independent authority with regard to aspects
of its snow and ice removal services, including,
specifically, a provision that obligated Cenova to
"report to the property without request... when icy,
sleet or slush conditions exist, " and a provision that
encouraged "spot applications" of salt and sand
when necessary. The agreement also stated that Levin retained
authority over Cenova's work, inasmuch as it prioritized
its plowing schedule, told Cenova where to pile snow,
detailed the ice removal materials and methods that Cenova
was to use and required Cenova to seek Levin's approval
before it applied salt and sand in certain circumstances.
Accordingly, while Cenova retained some independent
authority, we cannot conclude that the agreement
"displaced entirely" Levin's duty to maintain
the property (Palka v Servicemaster Mgt. Servs.
Corp., 83 N.Y.2d 579, 584 ; see Gibson v
Dynaserv Indus., Inc., 88 A.D.3d 1135, 1136 ;
Parker v Rust Plant Servs., Inc., 9 A.D.3d 671,
673-674 ; compare Karac v City of Elmira, 14
A.D.3d 842, 844 ).
respect to the first Espinal exception, plaintiffs
alleged that defendants "created and/or increased and
exacerbated the hazardous condition" in the parking lot.
Further, by their bill of particulars, plaintiffs alleged
that defendants "fail[ed] to remove the snow and
ice" and "creat[ed] the buildup of ice, dirt and
frozen slush, which had accumulated on the ground."
Further, plaintiffs alleged that the condition that caused
Hutchings' injury was the "slippery and uneven
mixture of compacted snow, ice and dirt, and a generally
slippery condition including elevation and depression on the
surface, which accumulated on the ground in the rear parking
area." We find that Supreme Court properly determined
that defendants met their initial burdens by establishing
that there was no affirmative negligence (see Fung v
Japan Airline Co., Ltd., 9 N.Y.3d 351, 361 ).
opposition to Cenova's motion and Great Choice's
cross motion, plaintiffs submitted an affidavit by Howard G.
Altschule, a forensic meteorologist. Based on his review of,
among other things, the meteorological records and
photographs of the parking lot and area where Hutchings fell,
Altschule opined that, if the lot had been treated with
materials to melt the snow and ice on the day before she
fell, "areas of standing water and wet surfaces would
have formed, and melt would have pooled at low points on the
surface of the parking lot" and, if not treated
overnight, these areas would have "frozen and turned to
ice" by the time that Hutchings fell the next day. In
our view, Altschule's affidavit fails to raise a material
question of fact, inasmuch as the evidence demonstrates only
that defendants may have failed to clear all of the ice and
snow, a fact that does not constitute the affirmative
creation of a dangerous condition (see id.;
DiGrazia v Lemmon, 28 A.D.3d 926, 928 , lv
denied 7 N.Y.3d 706');">7 N.Y.3d 706 ; compare Hannigan v
Staples, Inc., 137 A.D.3d 1546, 1550  [where
contractor may have created dangerous condition by piling
chunks of ice which melted then ran downhill and refroze
within a depressed area of the parking lot]). Accordingly,
Supreme Court properly granted Cenova's motion and Great
Choice's cross motion for summary judgment dismissing the
complaint against them.
light of the foregoing, Great Choice's appeal from that
part of the order granting Cenova's motion seeking