- December 8, 2017
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
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
that the order is affirmed insofar as appealed from, with
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.
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
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).
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).
the Supreme Court properly granted that branch of G.P.'s
motion which was for summary judgment dismissing the