Summary
directing dismissal of personal-injury claim in part because plaintiff failed to raise a triable issue of fact as to whether she detrimentally relied on defendant's performance of its contractual obligations with her employer
Summary of this case from Kennedy-McInnis v. Biomedical Tissue Servs., Ltd.Opinion
Argued April 20, 2001.
May 21, 2001.
In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (D'Emilio, J.), dated April 7, 2000, as denied its motion for summary judgment dismissing the complaint.
Ted M. Tobias, Melville, N.Y. (Leslie McHugh of counsel), for appellant.
Joel Mintz, Carle Place, N.Y. (Thomas Torto, New York, N.Y. [Jason Levine] of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P. WILLIAM D. FRIEDMANN, SANDRA J. FEUERSTEIN and BARRY A. COZIER, JJ.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed.
The plaintiff, Violeta Espinal, allegedly slipped and fell on a patch of ice in the parking lot owned by her employer, Miltope Corporation (hereinafter Miltope). Espinal brought this action to recover damages for personal injuries against the defendant, Melville Snow Contractors, Inc. (hereinafter Melville), alleging that her accident was caused by its negligent performance under its snow removal contract with Miltope. The Supreme Court denied Melville's motion for summary judgment dismissing the complaint. We reverse.
In support of its motion, Melville demonstrated, prima facie, that it did not undertake a comprehensive and exclusive maintenance obligation intended to displace Miltope's duty as a landowner to safely maintain its property (see, Pavlovich v. Wade Assocs., 274 A.D.2d 382; see also, Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579). In opposition, Espinal failed to raise a triable issue of fact as to whether she detrimentally relied on Melville's performance of its contractual obligations (see, Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220), or whether its actions had "advanced to such a point as to have launched a force or instrument of harm" (Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168). Thus, Espinal was not owed a duty of care by Melville (see, Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., supra; Bugiada v. Iko, 274 A.D.2d 368), and her allegation that it created or exacerbated the hazardous condition did not provide a basis for liability (see, Pavlovich v. Wade Assocs., supra). Therefore, Melville's motion should have been granted (see, Dorestant v. Snow, Inc., 274 A.D.2d 542; McKeown v. Stanan Mgt. Corp., 274 A.D.2d 460; Bugiada v. Iko, supra).