Jankowski v. RP Excavating & Landscaping, Inc.

Full title: PATTI ANN JANKOWSKI, Plaintiff, v. RP EXCAVATING & LANDSCAPING, INC. and…

Court: STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE

Date published: Apr 4, 2019

2019 N.Y. Slip Op. 34006 (N.Y. Sup. Ct. 2019)

Opinion

Index No. 806002/2016

04-04-2019

PATTI ANN JANKOWSKI, Plaintiff, v. RP EXCAVATING & LANDSCAPING, INC. and DENASA EXCAVATION, INC., Defendants

Dale J. Bauman, Esq. Lipsitz Green Scime Cambria, LLP 42 Delaware Avenue, Suite 120 Buffalo, New York 14202 Attorney for Plaintiff Andrew J. Kowalewski, Esq. Nash Connors, P.C. 344 Delaware Avenue, Suite 400 Buffalo, New York 14202 Attorney for Defendant RP Excavating & Landscaping, Inc. Michael J. Chmiel, Esq. Chelus Herdzick Speyer & Monte, P.C. 1000 Main Court Building, 438 Main Street Buffalo, New York 14202 Attorney for Defendant Denasa Excavation, Inc.

SIWEK, J.

NYSCEF DOC. NO. 55 Dale J. Bauman, Esq.
Lipsitz Green Scime Cambria, LLP
42 Delaware Avenue, Suite 120
Buffalo, New York 14202
Attorney for Plaintiff Andrew J. Kowalewski, Esq.
Nash Connors, P.C.
344 Delaware Avenue, Suite 400
Buffalo, New York 14202
Attorney for Defendant RP Excavating &
Landscaping, Inc. Michael J. Chmiel, Esq.
Chelus Herdzick Speyer & Monte, P.C.
1000 Main Court Building, 438 Main Street
Buffalo, New York 14202
Attorney for Defendant Denasa Excavation, Inc. SIWEK, J., MEMORANDUM DECISION

Defendants RP Excavating & Landscaping, Inc. ("RP Excavating") and Denasa Excavation, Inc. ("Denasa") have moved for summary judgment dismissing plaintiff's complaint pursuant to CPLR §3212. This action arises out of a slip and fall which occurred on December 13, 2013 in the Lowe's parking lot in Springville, New York. Plaintiff, an employee of Lowe's, was scheduled to work a shift from 2:30 p.m. to 10:00 p.m. According to the plaintiff, light snow was falling when she woke up at 8:30 a.m. and when she left her house to go to work at 1:30 p.m. She testified that upon her arrival, the Lowe's parking lot, including parking spaces, had been plowed and that there was a dusting of snow on the ground. She testified that during her shift, she overheard the store manager calling someone to come to plow the lot. The manager was not deposed in this case. The manager allowed the plaintiff and other employees to leave early, at 9:30 p.m. When plaintiff exited the Lowe's store, she observed that the driving lane but not the parking spots had been plowed during her shift. She stated the area looked like a plow had gone through and that there were piles of snow on each side of the driving lane, one and one-half to two feet tall. She testified that the area had been plowed sometime during her shift because she could see a plow mark. She observed 8 to 10 inches of snow in the driving lane of the lot and a row of snow a foot and one-half to two feet high along both sides of the driving lane. When plaintiff was approximately 2½ feet away from her car, she tried to sidestep over the mound or pile of snow in front of her car with her left foot, and her foot slipped on 8 to 10 inches of white, fluffy snow on the other side.

Although copies of the contract and subcontract have not been produced in this action, it is undisputed that Denasa had a contract with Lowe's to snowplow the lots at five Lowe's locations during the time in question. Denasa's owner, Darren Sherry, testified that he subcontracted Denasa's obligations for the Lowe's Springville lot to RP Excavating. RP's owner, Richard Perkins, testified that there was no subcontract between Denasa and RP. Perkins testified that Sherry would contact him from time to time to plow the Springville Lowe's lot when Sherry was running behind or could not get to it. RP Excavating's records show that it plowed the Lowe's parking lot once on the day of the accident between 8:00 a.m. and 10:00 a.m. Perkins submitted an invoice to Denasa indicating that he plowed the Lowe's lot once on December 13, 2013 and charged $85.00 for the plowing work and an additional $120.00 for applying salt. Perkins also testified that it was his practice whenever plowing a commercial lot to plow the driving aisles and then clear out the parking spaces if cars were not parked there. He would not plow around parked cars to avoid hitting cars or people getting out of them. Perkins would angle his plow so that snow would be pushed to the center of the driving aisles and then plow the snow to the north, south and west ends of the parking lot. He denied that he would plow in a manner that would leave piles of snow on either side of the driving lane. Denasa denies that it plowed the lot on the date in question.

In opposition to the motion, plaintiff submitted the expert affidavit of David Weitz, an individual with expertise in plowing commercial lots, who opines that a snowplow operator must ensure that plowing operations do not result in an accumulation of snow which impedes a pedestrian path of travel. He opines that the condition the plaintiff described as 1½-2 foot rows of snow along the driving lane constituted a "windrow". Mr. Weitz states that "windrows" are the result of snow being directed either to the left or right side of a plow blade resulting in a linear pile of snow. Specifically, Mr. Weitz opines that safe plowing operations require that a "windrow" does not block the passage of a pedestrian to a parked motor vehicle and that a snowplow contractor should use an angled plow on the front side of the plow vehicle to create a windrow away from parked vehicles and then remove the windrow from the lot surface to prevent the existence of a hazard.

Initially, we find that the defendants met their burden of establishing that there was a storm in progress at the time of the accident as supported by plaintiff's deposition testimony, the expert affidavit of Aaron D. Mentkowski and meteorological data for December 13, 2013. We find that the plaintiff's opposition failed to raise a triable issue of fact with the expert affidavit of Andrew Parker, particularly in light of the fact that Parker's affidavit contradicts and/or ignores plaintiff's testimony relative to the conditions throughout the day and the amount of snow in the lot. See, Witherspoon v. Tops Markets, 128 A.D.3d 1541 (even plaintiff acknowledged in her deposition testimony that it was snowing on the morning in question and when she entered and exited the store, thus failing to raise a triable issue of fact as to whether there was a storm in progress when the accident occurred). See also, Sherman v. New York State Thruway Authority, 27 N.Y.3d 1019 (2016) (although a landowner owes a duty of care to keep his or her property in a reasonably safe condition, he will not be held liable in negligence for a plaintiff's injuries sustained as a result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter). Thus, the defendants could not be held liable in negligence for their failure to remove snow during the storm or for a reasonable time thereafter. Camacho v. Garcia, 273 A.D.2d 835 (4^th Dept. 2000).

However, it is well settled that liability may result if the efforts the defendant took created a hazardous condition or exacerbated the natural hazards created by the storm. See, e.g. Wheeler v. Grande 'Vie Senior Living Community, 31 A.D.3d 992 (3d Dept. 2006.) We find that the plaintiff has raised a triable issue of fact to the extent that she claims that the lot was plowed during her shift, rendering the storm in progress defense inapplicable.

There are limited circumstances where a party who enters into a contract to render services to a third party may be said to assume a duty of care and may be potentially liable in tort to third parties such as the plaintiff. Those circumstances are set forth in a Court of Appeals' decision in Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136 (2002). Relevant to the case at bar are the first and third Espinal exceptions. We find that the second Espinal exception of detrimental reliance does not apply in this case. See, Autrino v. Hausrath's Landscape Maintenance, Inc., 231 A.D.2d 943 (1996).

Pursuant to the first Espinal exception, a snowplow contractor may be liable to an injured third party if the contractor "launches a force or instrument of harm." Espinal, supra. Where, as here, there is a question as to whether the defendant has undertaken snow removal efforts during a storm, the inquiry for the court becomes whether or not the defendant's efforts either created or exacerbated a dangerous condition. Glover v. Botsford, 109 A.D.3d 1182 (4^th Dept. 2010); Cumbo v. Dormitory Authority of the State of New York, 71 A.D.3d 1513 (4^th Dept. 2010) (a defendant who undertakes to render services and then negligently creates or exacerbates a dangerous condition may be liable for any resulting injury); Garrett v. 1030 East Genesee Co., LLC, 169 A.D.3d 1433 (4^th Dept. 2019).

We find that plaintiff has raised a triable issue of fact as to whether one of the defendants negligently plowed the lot during her shift, creating the piles or mounds of snow ("windrows") on either side of the driving lane in front of her car. Plaintiff testified several times during the course of her deposition that she observed plow marks and that the lot looked like a plow went through during her shift. Her sworn testimony, coupled with the hearsay statement that she overheard the store manager call for a plow are sufficient together to raise a triable issue of fact. Krampen v. Foster, 242 A.D.2d 913 (4^th Dept. 1997) (hearsay may be considered in opposition to a motion for summary judgment and may be sufficient to defeat the motion); Garrett v. 1030 East Genesee Co., LLC, supra.; Rak v. Country Fair, Inc., 38 A.D.3d 1240 (4^th Dept. 2007).

We have also considered whether the third Espinal exception applies to establish a duty on the part of the plowing contractors to the plaintiff. In such cases, a snowplow contractor may be said to have assumed a duty of care to a third person where the contracting party has entirely displaced the other party's [generally the owner's] duty to maintain the premises safely. Considering the third Espinal exception, we note that the plaintiff pleadings do not allege that either Denasa or RP Excavating entirely displaced Lowe's duty to maintain the premises safely. See, Lingenfelter v. Delevan Terrace Associates, 149 A.D.3d 1522 (4^th Dept. 2017). Thus, in establishing their prima facie entitlement to summary judgment, the defendants were not required to negate the third Espinal exception, and the defendants' failure to provide the contract and subcontract does not serve to raise a triable issue of fact as to the defendants' duty to the plaintiff.

In conclusion, the Court finds that the plaintiff has raised a triable of fact as to whether the defendants negligently created or exacerbated a dangerous condition subjecting them to liability under the first Espinal exception, despite a storm in progress defense. See, Rak, supra. In particular, plaintiff's testimony relative to the telephone call that her manager made which requested plowing services and her observation of two windrows which she testified were created by a plow are sufficient to raise a triable issue of fact.

For the foregoing reasons, the defendants' motions are denied. This is the Decision of the Court. Submit Order on notice.

/s/_________

Hon. Donna M. Siwek

Justice of the Supreme Court Dated: April 4, 2019