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Trombetta v. G.P. Landscape Design, Inc.

Supreme Court of New York, Second Department

April 4, 2018

Concetta Trombetta, appellant,
v.
G.P. Landscape Design, Inc., respondent, et al., defendant. Index No. 20262/10

          Argued - December 8, 2017

         D54955 G/htr

          Law Office of Dino J. Domina, P.C. (LisaM. Comeau, Garden City, NY, of counsel), for appellant.

          Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, NY (Michael T. Reagan of counsel), for respondent.

          WILLIAM F. MASTRO, J.P. SHERI S. ROMAN SANDRA L. SGROI JEFFREY A. COHEN, JJ.

          DECISION & ORDER

         Appeal by the plaintiff from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated July 8, 2015. The order, insofar as appealed from, granted that branch of the motion of the defendant G.P. Landscape Design, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.

         ORDERED that the order is affirmed insofar as appealed from, with costs.

         On February 27, 2010, the plaintiff, an employee of the defendant McDonald's Corporation (hereinafter McDonald's), allegedly was injured when she slipped and fell on ice on a sidewalk outside a McDonald's restaurant located in Medford. In June 2010, the plaintiff commenced this action to recover damages for personal injuries against McDonald's and the defendant G.P. Landscape Design, Inc. (hereinafter G.P.), a contractor hired to perform snow removal services for McDonald's. In her bill of particulars, the plaintiff alleged, among other things, that G.P. launched a force or instrument of harm in the performance of its snow removal services at the subject premises. In the order appealed from, the Supreme Court, inter alia, granted that branch of G.P.'s motion which was for summary judgment dismissing the complaint insofar as asserted against it. The plaintiff appeals.

         "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'' (Rudloff v Woodland Pond Condominium Assn., 109 A.D.3d 810, 810; see Diaz v Port Auth. of NY & NJ, 120 A.D.3d 611; Lubell v Stonegate at Ardsley Home Owners Assn., Inc., 79 A.D.3d 1102, 1103). However, there are certain exceptions to this rule (see Espinal v Melville Snow Contrs., 98 N.Y.2d 136, 140). As relevant here, a contractor may be liable in tort where it fails to exercise reasonable care in the performance of its duties, and thereby launches a force or instrument of harm (see id. at 140; Santos v Deanco Servs., Inc., 142 A.D.3d 137, 141; Repetto v Alblan Realty Corp., 97 A.D.3d 735, 736).

         "A snow removal contractor cannot be held liable for personal injuries' on the ground that the snow removal contractor's passive omissions constituted the launch of a force or instrument of harm, where there is no evidence that the passive conduct created or exacerbated a dangerous condition'" (Somekh v Valley Natl. Bank, 151 A.D.3d 783, 786, quoting Santos v Deanco Servs., Inc., 142 A.D.3d at 138). "[A] failure to apply salt would ordinarily neither create ice nor exacerbate an icy condition, as the absence of salt would merely prevent a preexisting ice condition from improving' (Santos v Deanco Servs., Inc., 142 A.D.3d at 143; see Somekh v Valley Natl. Bank, 151 A.D.3d at 786).

         Here, G.P. established, prima facie, that it did not create or exacerbate the allegedly icy condition and, thus, launch a force or instrument of harm (see Koelling v Central Gen. Community Servs., Inc., 132 A.D.3d 734, 736; Conte v Servisair/Globeground, 63 A.D.3d 981, 981-982). In opposition, the plaintiff failed to raise a triable issue of fact through her contention that G.P. created or exacerbated the allegedly icy condition by failing to apply salt or sand. Even if G.P. failed to sand or salt the sidewalk where the plaintiff fell, the plaintiff has offered nothing more than speculation that the failure to perform that duty rendered the property less safe than it was before G.P. started its work (see Rudloff v Woodland Pond Condominium Assn., 109 A.D.3d at 811; Foster v Herbert Slepoy Corp., 76 A.D.3d 210, 215). The affidavit of the plaintiffs expert was speculative and, therefore, insufficient to raise a triable issue of fact (see Koelling v Central Gen. Community Servs., Inc., 132 A.D.3d at 737).

         Accordingly, the Supreme Court properly granted that branch of G.P.'s motion which was for summary judgment dismissing the ...


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