- March 6, 2017
& Huguenot (Diamond & Diamond, LLC, Brooklyn, NY
[Stuart Diamond], of counsel), for appellant.
A. Peirce, White Plains, NY (Julie Mer of counsel), for
respondent Marble Heights of Westchester, Inc.
K. Moore (Andrea G. Sawyers, Melville, NY [Jennifer M. Belk],
of counsel), for respondent Sal Gentile Landscaping, LLC.
C. BALKIN, J.P. LEONARD B. AUSTIN HECTOR D. LASALLE VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals, as limited by her brief, from so much of
an order of the Supreme Court, Westchester County (Walker,
J.), dated June 21, 2016, as granted those branches of the
separate motions of the defendant Marble Heights of
Westchester, Inc., and the defendant Sal Gentile Landscaping,
LLC, which were for summary judgment dismissing the complaint
insofar as asserted against each of them.
that the order is modified, on the law, by deleting the
provision thereof granting that branch of the motion of the
defendant Sal Gentile Landscaping, LLC, which was for summary
judgment dismissing the complaint insofar as asserted against
it, and substituting therefor a provision denying that branch
of the motion; as so modified, the order is affirmed insofar
as appealed from, with one bill of costs to the plaintiff
payable by the defendant Sal Gentile Landscaping, LLC, and
one bill of costs to the defendant Marble Heights of
Westchester, Inc., payable by the plaintiff.
plaintiff allegedly was injured when she slipped and fell on
a patch of ice in her condominium complex. The plaintiff
commenced this action to recover damages for her personal
injuries against Marble Heights of Westchester, Inc.
(hereinafter Marble Heights), the homeowners association for
the complex, and Sal Gentile Landscaping, LLC (hereinafter
Gentile), the snow removal contractor hired by Marble Heights
to plow and salt the premises. After the completion of
discovery, Gentile and Marble Heights separately moved, inter
alia, for summary judgment dismissing the complaint insofar
as asserted against each of them. The Supreme Court granted
those branches of the motions, and the plaintiff appeals.
limited contractual undertaking to provide snow removal
services generally does not render the contractor liable in
tort for the personal injuries of third parties''
(Baratta v Home Depot USA, 303 A.D.2d 434, 434).
However, the Court of Appeals has recognized three exceptions
to the general rule: "(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, 140
[internal quotation marks and citations omitted]).
prima facie showing which a defendant must make on a motion
for summary judgment is governed by the allegations of
liability made by the plaintiff in the pleadings'
(Foster v Herbert Slepoy Corp., 76 A.D.3d 210, 214;
see Knox v Sodexho Am., LLC, 93 A.D.3d 642). Here,
Gentile did not dispute that the pleadings sufficiently
alleged facts which would establish that it had exacerbated
the icy conditions in attempting to clear the area of snow
where the plaintiff fell, thereby launching a force or
instrument of harm (see Santos v Deanco Servs.,
Inc., 104 A.D.3d 933, 934), and it submitted evidence
which it contended demonstrated that Gentile did not launch a
force or instrument of harm.
Gentile submitted the deposition testimony of its owner, Sal
Gentile, as to his typical snow removal practices at the
Marble Heights complex, Gentile submitted no evidence
concerning snow removal efforts for the snowfall which
preceded the plaintiff's accident. Therefore, Gentile did
not affirmatively establish that it did not launch a force or
instrument of harm (see id. at 934; Rubistello v
Bartolini Landscaping, Inc., 87 A.D.3d 1003, 1005).
Since Gentile failed to make the requisite showing, the
sufficiency of the plaintiff's papers in opposition need
not be considered (see Winegrad v New York Univ. Med.
Ctr., 64 N.Y.2d 851). Accordingly, that branch of
Gentile's motion which was for summary judgment
dismissing the complaint insofar as asserted against it
should have been denied.
Supreme Court, however, properly granted that branch of
Marble Heights' motion which was for summary judgment
dismissing the complaint insofar as asserted against it.
Contrary to the plaintiff's assertion, Marble Heights
demonstrated that it lacked actual or constructive notice of
the black ice condition upon which the plaintiff allegedly
slipped (see Christal v Ramapo Cirque Homeowners
Assoc.,51 A.D.3d 846; Robinson v Trade Link
Am.,39 A.D.3d 616, 616-617). In opposition to Marble
Heights' demonstration of its prima facie entitlement to
judgment as a matter of law, the plaintiff failed ...