Bronstein v. Benderson Dev. Co.

167 A.D.3d 837

91 N.Y.S.3d 142

Natalie BRONSTEIN, Appellant,

v.BENDERSON DEVELOPMENT COMPANY, LLC, et al., Respondents.

2017–07378

Index No. 2049/14

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

Submitted—June 21, 2018

December 19, 2018

Neimark & Neimark LLP, New City, N.Y. (Ira H. Lapp of counsel), for appellant.

Marc D. Orloff, P.C., Goshen, N.Y. (Dennis J. Mahoney III of counsel), for respondents.

REINALDO E. RIVERA, J.P., MARK C. DILLON, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Putnam County (James T. Rooney, J.), dated April 26, 2017. The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants Benderson Development Company, LLC, and Fitzgerald Family, LLC, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

On the morning of January 15, 2014, the plaintiff allegedly slipped and fell on ice in the parking lot of a strip mall in Patterson. The plaintiff commenced this action to recover damages for personal injuries against the defendant Benderson Development Company, LLC (hereinafter Benderson), which managed the premises, the defendant Fitzgerald Family, LLC, (hereinafter Fitzgerald), one of the owners of the premises, and the defendant Amaxx Cameon Landscaping, Inc. (hereinafter Amaxx), which provided snow/ice removal services at the premises. The defendants moved for summary judgment dismissing the complaint. With respect to Benderson and Fitzgerald, the defendants argued those defendants neither created the alleged ice condition that caused the plaintiff to fall nor had notice of it. With respect to Amaxx, the defendants argued that Amaxx did not owe the plaintiff a duty of care by virtue of its limited snow/ice removal contract with Benderson. The Supreme Court granted the motion, and 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, 971 N.Y.S.2d 170 ; see Diaz v. Port Auth. of N.Y. & NJ, 120 A.D.3d 611, 990 N.Y.S.2d 882 ; Lubell v. Stonegate at Ardsley Home Owners Assn., Inc., 79 A.D.3d 1102, 1103, 915 N.Y.S.2d 103 ). 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, 746 N.Y.S.2d 120, 773 N.E.2d 485 [internal quotation marks and citations omitted] ).

Here, the defendants established, prima facie, that Amaxx did not owe the plaintiff a duty of care by offering proof that the plaintiff was not a party to the snow/ice removal contract between Amaxx and Benderson (see Koslosky v. Malmut, 149 A.D.3d 925, 926, 52 N.Y.S.3d 400 ; Leibovici v. Imperial Parking Mgt. Corp., 139 A.D.3d 909, 910, 33 N.Y.S.3d 312 ; Bryan v. CLK–HP 225 Rabro, LLC, 136 A.D.3d 955, 956, 26 N.Y.S.3d 207 ; Ankin v. Spitz, 129 A.D.3d 1001, 1003, 12 N.Y.S.3d 250 ; Javid v. Sclafmore Constr., 117 A.D.3d 907, 907–908, 985 N.Y.S.2d 893 ; Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226 ). Contrary to the plaintiff's contention, since the pleadings did not allege facts which would establish the applicability of any of the Espinal exceptions, the defendants were not required to affirmatively demonstrate that these exceptions did not apply in order to establish their prima facie entitlement to judgment as a matter of law with respect to Amaxx (see Koslosky v. Malmut, 149 A.D.3d at 926, 52 N.Y.S.3d 400 ; Leibovici v. Imperial Parking Mgt. Corp., 139 A.D.3d at 910, 33 N.Y.S.3d 312 ; Bryan v. CLK–HP 225 Rabro, LLC, 136 A.D.3d at 956, 26 N.Y.S.3d 207 ; Ankin v. Spitz, 129 A.D.3d at 1003, 12 N.Y.S.3d 250 ; Javid v. Sclafmore Constr., 117 A.D.3d at 907–908, 985 N.Y.S.2d 893 ; Foster v. Herbert Slepoy Corp., 76 A.D.3d at 214, 905 N.Y.S.2d 226 ).

In opposition, the plaintiff failed to raise a triable issue of fact as to whether Amaxx launched a force or instrument of harm (see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 142, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). "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, 57 N.Y.S.3d 487, quoting Santos v. Deanco Servs., Inc., 142 A.D.3d 137, 138, 35 N.Y.S.3d 686 ; see Rudloff v. Woodland Pond Condominium Assn., 109 A.D.3d at 811, 971 N.Y.S.2d 170 ).

The defendants, however, failed to establish, prima facie, that Benderson and Fitzgerald did not have...