Opinion
No. 59840.
02-22-2016
Debbie M. Anderson, Plaintiff, v. EP GLENS FALLS REALTY, LLC, Glens Falls Crossings, LLC, The Pines at Glens Falls and Jim Girard Landscape Maintenance Corporation, Defendants.
Law Office of Martin & Martin, Glens Falls (Michael Martin of counsel), for plaintiff. O'Connor, O'Connor, Bresee & First, P.C., Albany (Danielle N. Meyers of counsel), for defendant.
Law Office of Martin & Martin, Glens Falls (Michael Martin of counsel), for plaintiff.
O'Connor, O'Connor, Bresee & First, P.C., Albany (Danielle N. Meyers of counsel), for defendant.
ROBERT J. MULLER, J.
This is a defense motion for summary judgment involving a slip and fall that occurred at approximately 7:00 P.M. on March 1, 2011 in a parking lot owned by defendant The Pines at Glens Falls Center for Nursing and Rehabilitation (hereinafter The Pines), located at 170 Warren Street in the City of Glens Falls, Warren County. Plaintiff Debbie M. Anderson was an employee of The Pines and defendant Jim Girard Landscape Maintenance Corporation (hereinafter Girard) is the movant. The causes of action relating to Girard concern allegations of negligence and warranty. Girard is a property maintenance company that contracted with The Pines to provide numerous landscaping services, including snow plowing and sanding. The winter related services encompassed snow plowing at specified hours following a snow accumulation of one inch. This included sanding of parking lots and applying rock salt to icy patches of those parking lots simultaneous with the snow plowing. In the absence of any precipitation Girard performed no additional services unless called upon by The Pines to do so; monitoring the premises for thaw/freeze conditions was not included in its contract. The Pines also had twenty-four access to Girard by cell phone should services described by the contract be required. Notably, the contract provided that applications of sand to the parking lots “(1) shall be at the discretion of the contractor and (2) upon request from the appointed agent for [The Pines]” [emphasis added]. The Court interprets the first provision to apply simultaneous to snow plowing and the second at another point in time. Hence, if there were melting and re-freezing snow, the responsibility to address it was retained by The Pines alone to decide whether parking area conditions warranted application(s) of salt—sand. On the date of this incident, Girard denies having been summoned to provide any services. Snow plowing operations prior to the date of plaintiff's incident last occurred on February 27 and 28, 2011 and the submissions on this motion amply demonstrate there was no further precipitation from February 28, 2011 to the date of the incident.
Plaintiff has discontinued the action as against all remaining defendants, thus rendering the other causes of action in the complaint moot.
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The essence of Girard's motion has several moving parts. In order to prove a negligence action plaintiff must show that: (1) defendant owed plaintiff a duty of care; (2) defendant breached that duty of care; and (3) the breach proximately caused damages to plaintiff (see Turcotte v. Fell, 68 N.Y.2d 432, 437 [1986] ; Evarts v. Pyro Eng'g, Inc., 117 AD3d 1148, 1150 [2014] ; see also Ortega v. Liberty Holdings, LLC, 111 AD3d 904, 906 [2013] ; Merchants Mut. Ins. Co. v. Quality Signs of Middletown, 110 AD3d 1042, 1043 [2013] ).
“The existence and scope of [the] alleged tortfeasor's duty is, in the first instance, a legal question for determination by the court' “ (Evarts v. Pyro Eng'g, Inc., 117 AD3d at 1150, quoting Di Ponzio v. Riordan, 89 N.Y.2d 578, 583 [1997] [citations omitted] ). “In analyzing questions regarding the scope of an individual actor's duty, the courts look to whether the relationship of the parties is such as to give rise to a duty of care, whether ... plaintiff was within the zone of foreseeable harm and whether the accident was within the reasonably foreseeable risks” (Di Ponzio v. Riordan, 89 N.Y.2d at 582 [citations omitted]; see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138 [2002] ; Palka v. ServiceMaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 585 [1994] ; Kemper v. Arnow, 18 AD3d 939, 940–941 [2005] ; see also Dance Magic, Inc. v. Pike Realty, Inc., 85 AD3d 1083, 1088–1089 [2011] ).
The “contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” (Espinal v.. Melville Snow Contrs., 98 N.Y.2d at 138 ; see Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226 [1990] ). To the contrary, such a contractual obligation “will impose a duty only in favor of the promisee and intended third-party beneficiaries' “ (Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, quoting Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d at 226 ). It is a precisely and oft repeated rule that contracts for snow removal, independently, do not create a duty to exercise reasonable care (see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 138 ; Belmonte v. Guilderland Assoc., LLC, 112 AD3d 1128, 1129 [2013] ; Baker v. Buckpitt, 99 AD3d 1097, 1098 [2012] ; Gibson v. Dynaserv Indus., Inc., 88 AD3d 1135, 1135 [2011] ; Phillips v. Young Men's Christian Assn., 215 A.D.2d 825, 826 [1995] ; see also DeCanio v. Principal Bldg. Servs. Inc., 115 AD3d 579, 579 [2014] ; Roach v. AVR Realty Co., LLC, 41 AD3d 821, 823 [2007] ; McConologue v. Summer St. Stamford Corp., 16 AD3d 468, 469 [2005] ).
There are exceptions to this rule and Espinal v. Melville Snow Contrs. (supra ) instructs of three situations upon which it may be concluded that a party who enters into a contract to render services may be said to have assumed the 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, quoting Moch Co. v.. Rensselaer Water Co., 247 N.Y. 160, 168 [1928] ; see Church v. Callanan Indus., 99 N.Y.2d 104, 111 [2002] ; Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 589 [1994] ; Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d at 226 ; Baker v. Buckpitt, 99 AD3d at 1098 ; Gibson v. Dynaserv Indus., Inc., 88 AD3d at 1135 ; Phillips v. Young Men's Christian Assn., 215 A.D.2d at 826 ).
Taking this analysis incrementally plaintiff is not a contracting party and thus Girard only owes a duty to plaintiff if one of the exceptions outlined in Espinal v. Melville Snow Contrs. (supra ) applies. First is whether Girard launched a force or instrument of harm or worsened the conditions of the parking lot. In order to succeed here plaintiff must present evidence that defendant “left the premises in a more dangerous condition than [it] found them' or, launched a force or instrument of harm that caused her to fall and be injured” (Gibson v. Dynaserv Indus., Inc., 88 AD3d at 1136, quoting Foster v. Herbert Slepoy Corp., 76 AD3d 210, 215 [2010] ; see Church v. Callanan Indus., 99 N.Y.2d at 111 ; Moch Co. v. Rensselaer Water Co., 247 N.Y. at 168 ). The majority of plaintiff's negligence allegations are that defendant was inactive and failed to improve the condition of the lot “having actual notice and knowledge of the danger created by the aforesaid condition, [and] act[ing] with gross negligence and carelessness in failing to warn and/or inform ... plaintiff ... of the unsafe, dangerous, and hazardous condition of said parking lot.”
Insofar as the only allegation of affirmative harm pertains to Girard's piling of snow, Peters v. United Ref. Co. of Pa., 57 AD3d 1512 (2008) is illustrative of the burden plaintiff must meet here. There, plaintiff argued that a snow plow contractor had “negligently created or exacerbated a dangerous condition by piling mounds of snow on the perimeter of the property, which then melted and re-froze” (id. at 1512 ). That Court was not persuaded and granted summary judgment dismissing the action based upon its finding that (1) the contract was for plowing, not snow removal; and (2) salting, sanding, or snow removal was to be done upon request only (see id. at 1512–1513 ). While the contract under consideration here does provide for snow removal, it does so only upon request and is unrelated to the contract obligations triggered by an ongoing snowfall. On the date of this incident, there was no precipitation, The Pines did not make a request for snow removal and did not request salting/sanding services for its parking areas. The Court is unpersuaded that plaintiff can establish application of this exception to the rule. Quite simply, plaintiff's conclusory allegations are insufficient to create a triable issue of material fact as to whether Girard launched an instrument of harm as to piling snow—or somehow made matters worse (see Baker v. Buckpitt, 99 AD3d at 1100 ; see also Abbattista v. King's Grant Master Assn., Inc., 39 AD3d 439, 441 [2007] ; Zabbia v. Westwood, LLC, 18 AD3d 542, 544–545 [2005] ).
Next is to consider whether plaintiff detrimentally relied upon Girard's continued performance of the contract. “To limit an open-ended range of tort liability arising out of contractual breaches, injured non-contracting parties must show that the performance of contractual obligation [between others] has induced detrimental reliance [by them] on continued performance and inaction would result not merely in withholding a benefit, but positively or actively in working an injury” (Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d at 587 [citations and internal quotation marks omitted] ). “The nexus for a tort relationship between the defendant's contractual obligation and the injured noncontracting plaintiff's reliance and injury must be direct and demonstrable, not incidental or merely collateral” (id.%; see Strauss v. Belle Realty Co., 65 N.Y.2d 399, 404 [1985] ; White v. Guarente, 43 N.Y.2d 356, 361 [1977] ; Ultramares Corp. v. Touche, 255 N.Y. 170, 182–185 [1931] ). This rule has not evolved in a vacuum. “[T]he boundaries of duty are not simply contracted or expanded by the notion of foreseeability, for if it were, [e]very one making a promise having the quality of a contract will be under a duty to the promisee by virtue of the promise, but under another duty, apart from contract, to an indefinite number of potential beneficiaries when performance has begun' “ (Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d at 586, quoting Moch Co. v. Rensselaer Water Co., 247 N.Y. at 168 ; see Beck v. FMC Corp., 42 N.Y.2d 1027, 1028 [1977] ; Tobin v. Grossman, 24 N.Y.2d 609, 616–617 [1969] ).
The submissions on this motion clearly establish plaintiff's status on this topic: prior to the accident she had no knowledge that Girard had a snow plowing contract with The Pines, she never saw anyone clear snow from the parking lots at any time, she did not rely on Girard continuing to plow snow and she never made any complaints to Girard about the condition of the parking lots prior to the date of this incident. Plaintiff has therefore failed to establish this exception to the rule.
The final issue left in this Espinal v. Melville Snow Contrs. (supra ) autopsy is whether Girard displaced The Pines' duty to maintain these premises in a reasonably safe manner. “While plaintiff is not bound by the provisions of a contract to which it is not a party, the limited scope of defendants' undertaking is nonetheless relevant in determining whether a tort duty to others should arise from their performance of the contractual obligations” (Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d at 227 ; see Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d at 588 ). The limited scope in this contract is that Girard's responsibility to plow was not triggered until there was a one inch or more snow accumulation or if, for some different reason, The Pines contacted them. Girard claims to have never received such a call and there is no evidence that The Pines ever placed such a call. The closest plaintiff comes to this factual issue is found in her testimony when at her 4:00 P.M. break she noticed the icy condition on the parking lot and informed a woman at the desk by the entrance “that the parking lot [was] freezing and slippery[ ] and that she [should] notify the supervisor to get someone to come attend to it before someone got hurt.”
The submissions on the motion also establish that an employee of The Pines had training with respect to inspecting the exterior of the property and, if there was a complaint about ice accumulations in the parking area an employee would attend to it. The Pines thus maintained the area through its own employees even after it contracted with Girard.
In seeking summary judgment Girard carries the initial burden to “make a prima facie showing of entitlement to judgment as a matter of law[ by] tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ). To that end, it has succeeded. As the foregoing analysis demonstrates through submissions in evidentiary form Girard has sufficiently established prima facie entitlement to judgment as a matter of law. The burden therefore has shifted to plaintiff to submit admissible evidence establishing the existence of triable issues of fact (see id.; Zuckerman v. City of New York, 49 N.Y.2d 557, 560 [1980] ).
Plaintiff approaches this burden by submitting three affidavits of employees of The Pines, and two visitors, each of whom essentially state that the parking lot was dangerous due to ice which was created by melting snow piles following Girard's earlier plowing. One affiant—a plaintiff in an unrelated case-describes having fallen due to ice in the parking lot two days after plaintiff's accident. With that said, essentially the thrust of these testimonials is that the parking lot ice accumulation was caused by the piled snow. There is no more informed evidence of this such as, by way of example, a certified meteorologic record or other competent testimony connecting one with the other.
As already observed—plaintiff testified that she noticed an icy condition on the parking lot earlier in the day and reported this to her co-worker at The Pines. Although this testimony captures plaintiff's version of this conversation it does not displace her obligation on the motion to raise a question of fact aimed at defendant's testimony that it received no request for services on the date of plaintiff's accident. Summary judgment on this cause of action is granted.
Plaintiff's remaining cause of action is premised upon a theory of there having been a breach of defendant's express and, or implied warranties. “[T]here is no cause of action for breach of warranty where the defendant has only provided a service” (Gutarts v. Fox, 104 AD3d 457, 459 [2013] ; see Milau Assoc. v. North Ave. Dev. Corp., 42 N.Y.2d 482, 488 [1977] ; Perlmutter v. Beth David Hosp., 308 N.Y. 100, 108 [1954] ; Mallards Dairy, LLC v. E & M Engrs. & Surveyors, P.C., 71 AD3d 1415, 1417 [2010] ). “Rather, [i]f [services are] performed negligently, the cause of action accruing is that for negligence. Likewise, if it constitutes a breach of contract, the action is for that breach' “ (Mallards Dairy, LLC v. E & M Engrs. & Surveyors, P.C., 71 AD3d at 1417, quoting Aegis Prods. v. Arriflex Corp. of Am., 25 A.D.2d 639 [1966] ; see Rochester Fund Muns. v. Amsterdam Mun. Leasing Corp., 296 A.D.2d 785, 787 [2002] ). In this case the contract was one for services and plaintiff cannot succeed under a theory of express or implied warranty (see Gutarts v. Fox, 104 AD3d at 459 ; Milau Assoc. v. North Ave. Dev. Corp., 42 N.Y.2d at 488 ; Perlmutter v. Beth David Hosp., 308 N.Y. at 108 ; Mallards Dairy, LLC v. E & M Engrs. & Surveyors, P.C., 71 AD3d at 1417 ). Summary judgment on the fourth cause of action is also granted.
The within constitutes the Decision and Order of this Court.
Accordingly, and based upon the foregoing, it is hereby
ORDERED that Girard's motion for summary judgment dismissing the complaint is granted in its entirety; and it is further
ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.
The original of this Decision and Order has been filed by the Court. The Notice of Motion dated September 21, 2015 has been filed by the Court together with the submissions referenced below. Counsel for defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon plaintiff in accordance with CPLR 5513.
Papers reviewed:
1.Affidavit of Danielle N. Meyers, Esq., sworn to September 21, 2015, together with Exhibits “A” through “I”;
2.Memorandum of Law of Danielle N. Meyers, Esq., dated September 21, 2015;
3.Affidavit in Opposition of Michael S. Martin, Esq., sworn to January 7, 2016, together with Exhibits “A” through “G”;
4.Affidavit of Debbie M. Anderson, sworn to January 7, 2016;
5.Affidavit of Yvonne Cappiello, sworn to January 4, 2016;
6.Affidavit of Constance R. Blackmer, sworn to January 5, 2016;
7.Affidavit of Brenda L. Gottlieb, sworn to January 7, 2016;
8.Affidavit of Jacqueline A. Roberts, sworn to January 7, 2016;
9.Affidavit of Virginia Pecue, sworn to January 7, 2016, together with Exhibit “A”; and
10.Reply Affidavit of Steven V. Debraccio, Esq., sworn to January 20, 2016
and upon oral argument held on February 22, 2016.