Opinion
740 CA 21-00252
11-19-2021
Elizabeth BRITT, Plaintiff-Appellant, v. NORTHERN DEVELOPMENT II, LLC, Ryco Management, LLC, and Douglas Patnode Enterprises, Defendants-Respondents.
CELLINO LAW, LLP, ROCHESTER (ROBERT L. VOLTZ OF COUNSEL), FOR PLAINTIFF-APPELLANT. VAHEY GETZ, LLP, ROCHESTER (JARED K. COOK OF COUNSEL), FOR DEFENDANTS-RESPONDENTS NORTHERN DEVELOPMENT II, LLC AND RYCO MANAGEMENT, LLC. LAW OFFICE OF JOHN WALLACE, BUFFALO (ALYSON C. CULLITON OF COUNSEL), FOR DEFENDANT-RESPONDENT DOUGLAS PATNODE ENTERPRISES.
CELLINO LAW, LLP, ROCHESTER (ROBERT L. VOLTZ OF COUNSEL), FOR PLAINTIFF-APPELLANT.
VAHEY GETZ, LLP, ROCHESTER (JARED K. COOK OF COUNSEL), FOR DEFENDANTS-RESPONDENTS NORTHERN DEVELOPMENT II, LLC AND RYCO MANAGEMENT, LLC.
LAW OFFICE OF JOHN WALLACE, BUFFALO (ALYSON C. CULLITON OF COUNSEL), FOR DEFENDANT-RESPONDENT DOUGLAS PATNODE ENTERPRISES.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by denying the motion of defendants Northern Development II, LLC and Ryco Management, LLC in part and reinstating the amended complaint against those defendants insofar as the amended complaint alleges that they had constructive notice of the allegedly dangerous condition and created that condition, and as modified the order and judgment is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained when she slipped and fell on ice in a parking lot owned by defendant Northern Development II, LLC and managed by defendant Ryco Management, LLC (collectively, Ryco defendants). Defendant Douglas Patnode Enterprises (Patnode) had contracted with the Ryco defendants to provide snow plowing services. Patnode moved for summary judgment dismissing, inter alia, the amended complaint against it, and the Ryco defendants moved for summary judgment dismissing the amended complaint against them. Supreme Court granted both motions.
Contrary to plaintiff's contention, the court did not err in determining that Patnode owed no duty to plaintiff and thus properly granted that part of Patnode's motion seeking summary judgment dismissing the amended complaint against it. "As a general rule, a contractual obligation, standing alone, does not give rise to tort liability in favor of a third party" ( Lorquet v. Timoney Tech. Inc. , 188 A.D.3d 1584, 1585, 135 N.Y.S.3d 698 [4th Dept. 2020] [internal quotation marks omitted]). There is an exception to that general rule, however, "where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, ‘launche[s] a force or instrument of harm’ " ( Espinal v. Melville Snow Contrs. , 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ), thereby "creat[ing] an unreasonable risk of harm to others, or increas[ing] that risk" ( Church v. Callanan Indus. , 99 N.Y.2d 104, 111, 752 N.Y.S.2d 254, 782 N.E.2d 50 [2002] ). Here, even assuming, arguendo, that the allegations in the pleadings are sufficient to require Patnode to negate the possible applicability of that exception in establishing its prima facie entitlement to summary judgment, we conclude that Patnode met its initial burden of establishing that it did not launch a force or instrument of harm by creating or exacerbating a dangerous condition (see Lingenfelter v. Delevan Terrace Assoc. , 149 A.D.3d 1522, 1523, 53 N.Y.S.3d 762 [4th Dept. 2017] ; see generally Morris v. Ontario County , 152 A.D.3d 1185, 1187, 58 N.Y.S.3d 830 [4th Dept. 2017] ). In opposition thereto, plaintiff failed to raise a triable issue of fact. "[B]y merely plowing the snow, as required by the contract, [Patnode's] actions could not be said to have created or exacerbated a dangerous condition" ( Fung v. Japan Airlines Co., Ltd. , 9 N.Y.3d 351, 361, 850 N.Y.S.2d 359, 880 N.E.2d 845 [2007] [internal quotation marks omitted]; see Lingenfelter , 149 A.D.3d at 1523, 53 N.Y.S.3d 762 ; cf. Chamberlain v. Church of the Holy Family , 160 A.D.3d 1399, 1403, 75 N.Y.S.3d 718 [4th Dept. 2018] ).
As to the motion of the Ryco defendants, "[i]t is well settled that defendants seeking summary judgment dismissing a complaint in a premises liability case have the initial burden of establishing that [they] did not create the [allegedly] dangerous condition that caused plaintiff to fall and did not have actual or constructive notice thereof" ( Depczynski v. Mermigas , 149 A.D.3d 1511, 1511-1512, 52 N.Y.S.3d 776 [4th Dept. 2017] [internal quotation marks omitted]; see Hagenbuch v. Victoria Woods HOA, Inc., 125 A.D.3d 1520, 1521, 4 N.Y.S.3d 439 [4th Dept. 2015] ). Contrary to plaintiff's contention, the Ryco defendants met their initial burden of establishing that they did not have actual notice of any dangerous condition "by submitting evidence that [they] did not receive any complaints concerning the area where plaintiff fell and [were] unaware of any [ice] in that location prior to plaintiff's accident" ( Cosgrove v. River Oaks Rests., LLC , 161 A.D.3d 1575, 1576, 76 N.Y.S.3d 350 [4th Dept. 2018] [internal quotation marks omitted]; see Danielak v. State of New York , 185 A.D.3d 1389, 1389-1390, 128 N.Y.S.3d 103 [4th Dept. 2020], lv denied 35 N.Y.3d 918, 2020 WL 6864271 [2020] ). In opposition, plaintiff failed to raise a triable issue of fact with respect to actual notice (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Thus, we reject plaintiff's contention that the court erred in granting the Ryco defendants’ motion with respect to the claim that they had actual notice of the icy condition.
We agree with plaintiff, however, that the court erred in granting those parts of the Ryco defendants’ motion seeking summary judgment dismissing the amended complaint against them insofar as the amended complaint alleges that they had constructive notice of the allegedly dangerous condition and that they created that condition, and we therefore modify the order and judgment accordingly. With respect to constructive notice, it is well settled that a "defendant who has actual knowledge of a recurring dangerous condition can be charged with constructive notice of each specific recurrence of the condition" ( Rachlin v. Michaels Arts & Crafts , 118 A.D.3d 1391, 1393, 988 N.Y.S.2d 741 [4th Dept. 2014] [internal quotation marks omitted]; see Anderson v. Great E. Mall, L.P. , 74 A.D.3d 1760, 1761, 902 N.Y.S.2d 283 [4th Dept. 2010] ). Here, the Ryco defendants’ own submissions raise a triable issue of fact whether they had actual knowledge of a recurring dangerous condition in the parking lot in front of the entrance where plaintiff fell, thereby placing them on constructive notice (see Phillips v. Henry B'S, Inc. , 85 A.D.3d 1665, 1666-1667, 925 N.Y.S.2d 770 [4th Dept. 2011] ; see also Monnin v. Clover Group, Inc. , 187 A.D.3d 1512, 1513-1514, 132 N.Y.S.3d 194 [4th Dept. 2020] ; Campone v. Pisciotta Servs., Inc. , 87 A.D.3d 1104, 1105, 930 N.Y.S.2d 62 [2d Dept. 2011] ).
The Ryco defendants also failed to establish as a matter of law that they did not create the allegedly dangerous condition. The Ryco defendants submitted the deposition testimony of their property manager, who testified that the Ryco defendants directed Patnode to deposit plowed snow in an area of higher elevation than the parking lot and that every winter and spring, when the plowed snow melted, it flowed toward the entrance where plaintiff fell and pooled in the depressions in the parking lot. Viewing that testimony and the Ryco defendants’ other submissions in the light most favorable to plaintiff (see generally Gronski v. County of Monroe , 18 N.Y.3d 374, 381, 940 N.Y.S.2d 518, 963 N.E.2d 1219 [2011], rearg denied 19 N.Y.3d 856, 946 N.Y.S.2d 562, 969 N.E.2d 780 [2012] ), we conclude that the Ryco defendants’ own submissions "failed to eliminate the existence of a triable issue of fact as to whether the ice on which ... plaintiff allegedly slipped and fell was formed when snow piles created by the [Ryco] defendant[s’] snow removal efforts melted and refroze" ( Nicosia v. Bucky Demelas & Son Landscape Contrs., Inc. , 194 A.D.3d 826, 828, 143 N.Y.S.3d 893 [2d Dept. 2021] ; see Eisenberg v. Town of Clarkstown , 172 A.D.3d 683, 684-685, 99 N.Y.S.3d 394 [2d Dept. 2019] ; see also Hannigan v. Staples, Inc. , 137 A.D.3d 1546, 1549, 29 N.Y.S.3d 575 [3d Dept. 2016] ). Because the Ryco defendants failed to meet their initial burden on their motion with respect to the claims that they had constructive notice of the allegedly dangerous condition and created that condition, the motion should have been denied to that extent regardless of the sufficiency of plaintiff's opposing submissions (see Taylor v. Kwik Fill—Red Apple , 181 A.D.3d 1317, 1318, 121 N.Y.S.3d 487 [4th Dept. 2020] ; see generally Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).