Opinion
Index No. 59647/2018
03-02-2022
Patrizia LUNETTA, Plaintiff, v. PROFESSIONAL LAWN CARE, INC., Defendant.
Attorney for Plaintiff: Matthew Tomkiel, Esq., Tomkiel & Tomkiel, 925 Westchester Avenue, Suite 115, White Plains, NY 10604, Phone: 914-723-1700 Attorney for Defendant: Jeffrey D. Sherwin, Esq., MacVean Lewis Sherwin & McDermott, 34 Grove St., Middletown, NY 10940, Phone: 845-343-3000
Attorney for Plaintiff: Matthew Tomkiel, Esq., Tomkiel & Tomkiel, 925 Westchester Avenue, Suite 115, White Plains, NY 10604, Phone: 914-723-1700
Attorney for Defendant: Jeffrey D. Sherwin, Esq., MacVean Lewis Sherwin & McDermott, 34 Grove St., Middletown, NY 10940, Phone: 845-343-3000
David F. Everett, J.
The following papers were considered on the motion:
Notice of Motion/Affirmation/Statement/Memorandum/Exhibits/Affirmation/Exhibits/Affirmation/Reply (NYSCEF documents numbered 21-47)
This is an action to recover damages for personal injuries the plaintiff allegedly sustained when she slipped and fell due to icy conditions in the parking lot of her employer's premises. The plaintiff alleges that the defendant was contractually obligated to perform snow removal on the parking lots and roadways at the premises. In motion sequence number 1, the defendant moves for summary judgment dismissing the complaint. The plaintiff opposes the motion. For reasons explained below, the Court denies the motion.
On a summary judgment motion, the moving party must present prima facie proof demonstrating its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986] ). If the moving party carries this initial burden, then the nonmoving party must produce evidentiary proof in admissible form to require a trial of material issues of fact (see Zuckerman v City of New York , 49 NY2d 557, 562 [1980] ). The court must view the evidence in the light most favorable to the nonmoving party (see Pearson v Dix McBride, LLC , 63 AD3d 895 [2d Dept 2009] ).
In Espinal v Melville Snow Contrs. (98 NY2d 136, 138 [2002] ), the Court of Appeals held that "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party." However, the Court identified three exceptions to the general rule, pursuant to which "a party who 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: (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" ( id. at 140 [internal quotation marks and citations omitted]; see Foster v Herbert Slepoy Corp. , 76 AD3d 210 [2d Dept 2010] ). "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" ( Arnone v Morton's of Chicago/Great Neck, LLC , 183 AD3d 862, 863 [2d Dept 2020] ).
Here, the defendant establishes its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the plaintiff was not a party to a snow removal contract and, thus, the defendant owed no duty of care to her (see Laronga v Atlas-Suffolk Corp. , 164 AD3d 893, 895-896 [2d Dept 2018] ).
In opposition, however, the plaintiff raises a triable issue of fact regarding the applicability of an Espinal exception. Specifically, the plaintiff submits, among other evidence, the affidavit of John Iavarone. Iavarone, a watch engineer employed by the plaintiff's employer, asserts that he was with the plaintiff when she fell and that he observed the ice on which she slipped. He asserts that a comparison with the surrounding public roadways and walkways made it obvious that the parking lot had not been cleared to bare pavement during or after the storm. He claims that it was apparent that the defendant had come at some point during the storm a day earlier, plowed without salting, and left while snow was still falling. There was, he says, no sign of salt anywhere in the lot; there was no bare pavement. According to Iavarone, "[t]he parking lot had been plowed during the storm and then left while snow was still falling, without spreading any salt, causing the plowed surface to turn to ice, and a few inches of snow to accumulate on top of the ice. Because the plowing without salting caused ice, it would have been safer if [defendant] had not plowed at all. It would have been better traction if it was merely unplowed snow" (NYSCEF doc no 40 [p. 4]).
While "a claim that a contractor exacerbated an existing condition requires some showing that the contractor left the premises in a more dangerous condition than he or she found them" ( Foster v Herbert Slepoy Corp. , 76 AD3d at 215 ), the plaintiff in this case offers more than mere speculation that the failure to salt the area after plowing rendered the property less safe than it was before the defendant started its work (cf Foster v Herbert Slepoy Corp. , 76 AD3d at 215 ["even if Clancy had the obligation to apply salt or sand to the driveway/parking lot area after plowing, the owners and the plaintiff have offered nothing more than speculation that the failure to perform that duty rendered the property less safe than it was before Clancy started his work"]). Thus, the Court denies the defendant's motion.
The remaining contentions do not compel a different result.
Accordingly, it is,
ORDERED that the defendant's motion for summary judgment dismissing the complaint is denied; and it is further,
ORDERED that the defendant must, within ten days of the date of entry, serve on the plaintiff a copy of this decision and order with notice of entry; and it is further,
ORDERED that the defendant must, within ten days after service of the notice of entry, file proof of that service.
This constitutes the decision and order of the Court.