Forbes v. Equity One Ne. Portfolio, Inc.

212 A.D.3d 780

183 N.Y.S.3d 428

Glenn FORBES, plaintiff-respondent,

v.EQUITY ONE NORTHEAST PORTFOLIO, INC., defendant-respondent,World Maintenance, LLC, appellant, et al., defendant.

2021–02311

Index No. 619862/16

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

Argued—October 11, 2022

January 25, 2023

Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (I. Elie Herman, Ilysa Cholewa, and Patrick J. Lawless of counsel), for appellant.

Kujawski & Kujawski, Deer Park, NY (Mark Kujawski and Jennifer A. Spellman of counsel), for plaintiff-respondent.

MARK C. DILLON, J.P., ROBERT J. MILLER, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the defendant World Maintenance, LLC, appeals from an order of the Supreme Court, Suffolk County (Martha L. Luft, J.), dated March 12, 2021. The order, insofar as appealed from, denied those branches of the motion of the defendant World Maintenance, LLC, which were for summary judgment dismissing the complaint insofar as asserted against it and the cross-claim for contractual indemnification asserted against it by the defendant Equity One Northeast Portfolio, Inc., and on its cross-claim for contractual indemnification asserted against the defendant Equity One Northeast Portfolio, Inc.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the defendant World Maintenance, LLC, which were for summary judgment dismissing the complaint insofar as asserted against it and the cross-claim for contractual indemnification asserted against it by the defendant Equity One Northeast Portfolio, Inc., and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the defendant World Maintenance, LLC, payable by the plaintiff.

The plaintiff commenced this consolidated action to recover damages for personal injuries allegedly resulting from a slip and fall on black ice in a parking lot owned by the defendant Equity One Northeast Portfolio, Inc. (hereinafter Equity). The factual background of this appeal is set forth in greater detail in our decision and order on a related appeal (see Forbes v. Equity One Northeast Portfolio, Inc., ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2023 WL 380060 [Appellate Division Docket No. 2020–00799 ; decided herewith]). As relevant here, the defendant World Maintenance, LLC (hereinafter WM), an alleged snow removal contractor, moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it and Equity's cross-claim for contractual indemnification asserted against it, and on its cross-claim for contractual indemnification asserted against Equity. WM argued that it did not owe a duty of care to the plaintiff. In an order dated March 12, 2021, the Supreme Court, among other things, denied those branches of WM's motion. WM appeals.

Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party (see Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). "However, a party that enters into a contract to render services may be said to have assumed a duty of care, and thus, be potentially liable in tort to third persons, where (1) the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) the plaintiff detrimentally relies on the continued performance of the contracting party's duties, or (3) the contracting party has entirely displaced the other party's duty to maintain the premises safely" ( Martinelli v. Dublin Deck, Inc., 198 A.D.3d 635 –637, 152 N.Y.S.3d 336 ; see Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ).

Where the pleadings do not allege facts which would establish the applicability of any of the Espinal exceptions, a defendant is not required to affirmatively demonstrate that the exceptions do not apply in order to establish its prima facie entitlement to judgment as a matter of law (see Canciani v. Stop & Shop Supermarket Co., LLC, 203 A.D.3d 1011, 1013, 166 N.Y.S.3d 174 ; Martinelli v. Dublin Deck, Inc., 198 A.D.3d at 637, 152 N.Y.S.3d 336 ).

Here, WM demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by coming forward with evidence that the plaintiff was not a party to the snow removal contract (see Canciani v. Stop & Shop Supermarket Co., LLC, 203 A.D.3d at 1013, 166 N.Y.S.3d 174 ; Reisert v. Mayne Constr. of Long Is., Inc., 165 A.D.3d 854, 855, 85 N.Y.S.3d 490 ). Since the plaintiff did not allege facts in the pleadings that would establish the possible applicability of any of the Espinal exceptions, WM was not required to...