Bregaudit v. Loretto Health & Rehab. Ctr.

211 A.D.3d 1582

181 N.Y.S.3d 793

Edison BREGAUDIT, Plaintiff-Appellant,

v. LORETTO HEALTH AND REHABILITATION CENTER, Defendant-Appellant,andPro Scapes, Inc., Defendant-Respondent.

863

CA 21-01590

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: December 23, 2022

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (DAVID M. KATZ OF COUNSEL), FOR DEFENDANT-APPELLANT.

WOODRUFF LEE CARROLL P.C., SYRACUSE (WOODRUFF LEE CARROLL OF COUNSEL), FOR PLAINTIFF-APPELLANT.

COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (KELLY J. PARE OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying those parts of the motion of defendant Pro Scapes, Inc. for summary judgment dismissing the amended complaint against it, for summary judgment dismissing the cross claim against it insofar as that cross claim seeks common-law indemnification and for summary judgment on its cross claim, and reinstating the amended complaint against it and the cross claim against it insofar as that cross claim seeks common-law indemnification, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries allegedly sustained when he slipped and fell on ice and snow on the entrance ramp outside premises owned and operated by defendant Loretto Health and Rehabilitation Center (Loretto). As relevant here, Loretto had entered into a contract with defendant Pro Scapes, Inc. (Pro Scapes) for snow removal services at the facility.

On the date of the accident, Pro Scapes had been performing snow removal services from approximately 1:00 a.m. until 10:00 a.m. during a winter storm that began the day before. After Pro Scapes’ employees left the facility, Pro Scapes received a call requesting that their workers return because they had done "an awful job." Pro Scapes sent two employees back to Loretto, where they shoveled from 12:10 p.m. until 12:49 p.m., and then laid down two bags of deicer. Sometime thereafter, plaintiff, who was transporting a resident of the facility inside, slipped and fell on snow and ice on the sidewalk ramp in front of the building. Plaintiff injured his knee and shoulder. In his amended complaint, as amplified by his "fourth answer to the [demand for a] bill of particulars [by Pro Scapes]" (fourth supplemental bill of particulars), plaintiff alleged, inter alia, that he had slipped on ice and snow "located in an area where a pile of snow would accumulate when plowing the circle in front of the ramp." Plaintiff further alleged that the "entrance was inadequately salted," which "caused the ice and snow ... remaining on the walk to melt and refreeze creating additional ice" (emphasis added).

Pro Scapes moved for summary judgment dismissing the amended complaint against it, for summary judgment dismissing Loretto's cross claim against it for common-law and contractual indemnification and contribution, and for summary judgment on its cross claim against Loretto for contractual indemnification. Loretto filed a cross motion seeking, inter alia, summary judgment dismissing Pro Scapes’ cross claim. Supreme Court, inter alia, granted Pro Scapes’ motion and denied Loretto's cross motion. Plaintiff and Loretto now appeal.

We agree with plaintiff and Loretto that the court erred in determining that Pro Scapes did not owe plaintiff a duty of care. "As a general rule, a contractual obligation, standing alone, does not give rise to tort liability in favor of a third party" ( Lorquet v. Timoney Tech. Inc. , 188 A.D.3d 1584, 1585, 135 N.Y.S.3d 698 [4th Dept. 2020] [internal quotation marks omitted]). There is an exception to that general rule, however, "where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, ‘launche[s] a force or instrument of harm’ " ( Espinal v. Melville Snow Contrs. , 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ), thereby "creat[ing] an unreasonable risk of harm to others, or increas[ing] that risk" ( Church v. Callanan Indus. , 99 N.Y.2d 104, 111, 752 N.Y.S.2d 254, 782 N.E.2d 50 [2002] ). That exception does not apply when "the breach of contract consists ‘merely in withholding a benefit ... where inaction is at most a refusal to become an instrument for good’ " ( id. at 112, 752 N.Y.S.2d 254, 782 N.E.2d 50 ; see Mesler v. Podd LLC , 89 A.D.3d 1533, 1535, 933 N.Y.S.2d 493 [4th Dept. 2011] ). Rather, "a claim that a contractor [created or] exacerbated an existing condition requires some showing that the contractor left the premises in a more dangerous condition than he or she found them" ( Rudloff v. Woodland Pond Condominium Assn. , 109 A.D.3d 810, 811, 971 N.Y.S.2d 170 [2d Dept. 2013] ; see Church , 99 N.Y.2d at 112, 752 N.Y.S.2d 254, 782 N.E.2d 50 ; Baker v. Buckpitt , 99 A.D.3d 1097, 1100, 952 N.Y.S.2d 666 [3d Dept. 2012] ; Yery Suh v. Fleet Bank, N.A. , 16 A.D.3d 276, 276, 793 N.Y.S.2d 9 [1st Dept. 2005] ; see also Santos v. Deanco Servs., Inc. , 142 A.D.3d 137, 142, 35 N.Y.S.3d 686 [2d Dept. 2016] ).

Here, plaintiff alleged in his fourth supplemental bill of particulars that Pro Scapes negligently "created, aggravated and worsened the icy condition" of the subject walkway by "[u]sing insufficient salt" for the weather conditions, which allowed the remaining ice and snow to melt and refreeze, thereby creating additional ice. Viewing the evidence in the light most favorable to plaintiff and affording him the benefit of every reasonable inference (see Matter of Eighth Jud. Dist. Asbestos Litig. , 33 N.Y.3d 488, 496, 129 N.E.3d 891 [2019] ; Esposito v. Wright , 28 A.D.3d 1142, 1143, 814 N.Y.S.2d 430 [4th Dept. 2006] ), we conclude that Pro Scapes failed to meet its initial burden on its motion of establishing as a matter of law that it did not create or exacerbate the dangerous icy condition as alleged by plaintiff.

In support of its motion, Pro Scapes submitted excerpts of the deposition testimony...