Opinion
2020–08857 Index No. 60248/18
08-02-2023
Kathleen CAMELIO, et al., appellants, v. SHADY GLEN OWNERS’ CORP., et al., defendants, DeBartolo Landscaping, Inc., respondent (and a third-party action).
Harry I. Katz, P.C. (Shayne, Dachs, New York, NY [Jonathan A. Dachs ], of counsel) for appellants. Smith Sovik Kendrick & Sugnet, P.C., White Plains, NY (Cary S. Nosowitz of counsel), for respondent.
Harry I. Katz, P.C. (Shayne, Dachs, New York, NY [Jonathan A. Dachs ], of counsel) for appellants.
Smith Sovik Kendrick & Sugnet, P.C., White Plains, NY (Cary S. Nosowitz of counsel), for respondent.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (James W. Hubert, J.), dated October 22, 2020. The order, insofar as appealed from, granted that branch of the motion of the defendant DeBartolo Landscaping, Inc., which was for summary judgment dismissing the amended complaint insofar as asserted against it, and denied that branch of the plaintiffs’ cross-motion which was for summary judgment on the issue of the liability against that defendant.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant DeBartolo Landscaping, Inc., which was for summary judgment dismissing the amended complaint insofar as asserted against it, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiffs, payable by the defendant DeBartolo Landscaping, Inc.
In June 2018, the plaintiff Kathleen Camelio (hereinafter the injured plaintiff) allegedly fell as a result of a raised portion of pavement adjacent to a crosswalk on Shady Glen Court, a private road, at or near its intersection with Pelham Road, a public street, in the City of New Rochelle. At the time of the accident, Shady Glen Court was privately owned by the defendant Shady Glen Owners’ Corp. (hereinafter Shady Glen), and the defendant Librett Estate Group, Inc. (hereinafter Librett), was Shady Glen's property manager. Prior to the accident, the defendant DeBartolo Landscaping, Inc. (hereinafter DeBartolo Landscaping), was contractually retained by Shady Glen to resurface Shady Glen Court.
The injured plaintiff, and her husband suing derivatively, commenced this action against Shady Glen, Librett, and DeBartolo Landscaping, inter alia, to recover damages for personal injuries, alleging that the defendants were negligent in, among other things, repairing/repaving the road at issue and in creating a dangerous condition. Subsequently, DeBartolo Landscaping moved for summary judgment dismissing the amended complaint and all cross-claims insofar as asserted against it, and the plaintiffs cross-moved, among other things, for summary judgment on the issue of liability against DeBartolo Landscaping.
By order dated October 22, 2020, the Supreme Court, inter alia, granted that branch of DeBartolo Landscaping's motion which was for summary judgment dismissing the amended complaint insofar as asserted against it, and denied that branch of the plaintiffs’ cross-motion which was for summary judgment on the issue of liability against DeBartolo Landscaping. The plaintiffs appeal.
The Supreme Court should have denied that branch of DeBartolo Landscaping's motion which was for summary judgment dismissing the amended complaint insofar as asserted against it. 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 ; 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 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., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; Forbes v. Equity One Northeast Portfolio, Inc., 212 A.D.3d at 781, 183 N.Y.S.3d 428 ).
Where the plaintiffs allege facts in their pleadings or bill of particulars which would establish the applicability of any of the Espinal exceptions, a defendant is 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 Conrad v. Global Indus. Servs., Inc., 180 A.D.3d 868, 869, 116 N.Y.S.3d 599 ; Perry–Renwick v. Giovanni Macchia Landscaping & Gardening, Inc., 136 A.D.3d 772, 773, 26 N.Y.S.3d 91 ; cf. Forbes v. Equity One Northeast Portfolio, Inc., 212 A.D.3d at 781–782, 183 N.Y.S.3d 428 ). Here, the plaintiffs pleaded in their amended complaint and bill of particulars that DeBartolo Landscaping created the alleged dangerous condition that caused the injured plaintiff to fall as a result of, among other things, failing to properly repave the area. Therefore, DeBartolo Landscaping, in support of that branch of its motion which was for summary judgment dismissing the amended complaint insofar as asserted against it, had to establish, prima facie, that it did not create the dangerous or defective condition alleged (see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; Conrad v. Global Indus. Servs., Inc., 180 A.D.3d at 870, 116 N.Y.S.3d 599 ; Perry–Renwick v. Giovanni Macchia Landscaping & Gardening, Inc., 136 A.D.3d at 773, 26 N.Y.S.3d 91 ; Harris v. Lanai House, Inc., 111 A.D.3d 603, 603, 974 N.Y.S.2d 118 ). This DeBartolo Landscaping failed to do. When the evidence submitted in support of its motion is viewed in the light most favorable to the plaintiffs (see Sage v. Taylor, 195 A.D.3d 971, 972, 146 N.Y.S.3d 496 ; Gobin v. Delgado, 142 A.D.3d 1134, 1136, 38 N.Y.S.3d 63 ; Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 ), said evidence reveals, among other things, that DeBartolo Landscaping resurfaced Shady Glen Court in the area of the crosswalk prior to the subject accident, and that the resurfacing, which involved the application of new asphalt on top of the existing pavement, immediately resulted in a lip or elevation differential at the seam between the existing pavement and new asphalt. Thus, this evidence failed to demonstrate that Debartolo Landscaping did not create the alleged dangerous condition that caused the injured plaintiff to fall (see Nachamie v. County of Nassau, 147 A.D.3d 770, 774, 47 N.Y.S.3d 58 ; Perry–Renwick v. Giovanni Macchia Landscaping & Gardening, Inc., 136 A.D.3d at 772, 26 N.Y.S.3d 91 ; Harris v. Lanai House, Inc., 111 A.D.3d at 603–604, 974 N.Y.S.2d 118 ).
Moreover, the evidence proffered by DeBartolo Landscaping in support of its motion, which included photographs identified by the injured plaintiff as depicting the condition at issue, was inconclusive as to whether the condition alleged was trivial and not actionable as a matter of law (see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 83, 19 N.Y.S.3d 802, 41 N.E.3d 766 ).
Since DeBartolo Landscaping failed to establish its prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it, we need not address the sufficiency of the papers submitted by the plaintiffs in opposition to that branch of DeBartolo Landscaping's motion (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
The Supreme Court properly denied that branch of the plaintiffs’ cross-motion which was for summary judgment on the issue of the liability against DeBartolo Landscaping. "A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" ( Marazita v. City of New York, 202 A.D.3d 951, 952, 163 N.Y.S.3d 219 [internal quotation marks omitted]; see McDonnell v. Our Lady of Mercy R.C. Church, 209 A.D.3d 729, 730, 176 N.Y.S.3d 644 ; see also Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 ).
Here, based upon the evidence proffered in support of the cross-motion, which included the deposition testimony of the parties, as well as photographs depicting the condition at issue, a question of fact exists as to whether DeBartolo Landscaping "launched a force or instrument of harm," i.e., created the condition alleged, via the resurfacing work it performed on Shady Glen Court prior to the accident ( Espinal v. Melville Snow Contrs., 98 N.Y.2d at 142, 746 N.Y.S.2d 120, 773 N.E.2d 485 [internal quotation marks omitted]; see Torosian v. Bigsbee Vil. Homeowners Assn., 46 A.D.3d 1314, 1316, 848 N.Y.S.2d 452 ).
Since the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law on the issue of DeBartolo Landscaping's liability, we need not address the sufficiency of the papers submitted by DeBartolo Landscaping in opposition to that cross-motion (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
IANNACCI, J.P., CHAMBERS, DOWLING and VOUTSINAS, JJ., concur.