Gatanas v. Cmty. Serv. Support Corp.

213 N.Y.S.3d 426

228 A.D.3d 836

Joanne Demitra GATANAS, appellant,

v.COMMUNITY SERVICES SUPPORT CORPORATION, et al., defendants,Woodbury Landscaping, Inc., respondent.

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

Argued—February 23, 2024

June 20, 2024

Dell & Dean, PLLC (Joseph G. Dell and Mischel & Horn, P.C., New York, NY [Scott T. Horn and Christen Giannaros], of counsel), for appellant.

Congdon, Flaherty, O’Callaghan, Fishlinger & Pavlides, Uniondale, NY (Kathleen D. Foley of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, LAURENCE L. LOVE, JJ.

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), entered March 13, 2023. The order, insofar as appealed from, granted that branch of the motion of the defendant Woodbury Landscaping, 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.

The plaintiff allegedly was injured when she slipped and fell as result of ice on the ground between two parked vehicles at her employer’s premises located at 280 Crossways Park Drive in Woodbury. The accident allegedly occurred immediately after the plaintiff walked over and across a two-to three-foot-high mound of snow situated upon a landscaped median (hereinafter the median) separating her employer’s parking lot from the neighboring parking lot located at 260 Crossways Park Drive. At the time of the accident, the defendant Woodbury Landscaping, Inc. (hereinafter Woodbury Landscaping), had a contract to, among other things, remove snow and ice from the parking lot located at 280 Crossways Park Drive. Woodbury Landscaping did not perform snow removal at the parking lot located at 260 Crossways Park Drive.

The plaintiff commenced this action against Woodbury Landscaping to recover damages for personal injuries alleging, inter alia, that Woodbury Landscaping was negligent in its maintenance of the employer’s parking lot and in creating a dangerous condition. The plaintiff also commenced a separate personal injury action against other defendants. Those actions were subsequently consolidated. Thereafter, Woodbury Landscaping moved, among other things, for summary judgment dismissing the complaint insofar as asserted against it. By order entered March 13, 2023, the Supreme Court, inter alia, granted that branch of Woodbury Landscaping’s motion. The plaintiff appeals.

[1, 2] 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;. Tomala v. Islandia. Expressway Realty, LLC, 216 A.D.3d 696, 698, 187 N.Y.S.3d 795; Forbes v. Equity One Northeast Portfolio, Inc., 212 A.D.3d 780, 183 N.Y.S.3d 428). "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 rea- sonable 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; ...