Opinion
2018–04831 Index No. 711901/15
04-17-2019
Deborah Ellen TURNER, plaintiff-respondent, v. BIRCHWOOD ON THE GREEN OWNERS CORP., et al., defendants-Respondents, HP Maintenance & Construction, Inc., appellant.
Morris Duffy Alonso & Faley, New York, N.Y. (Iryna S. Krauchanka and Andrea M. Alonso of counsel), for appellant. Greenberg Law P.C., New York, N.Y. (Jennifer A. Shafer of counsel), for plaintiff—respondent. Margaret G. Klein (Mauro Lilling Naparty LLP, Woodbury, N.Y. [Caryn L. Lilling, Anthony F. DeStefano, and Jessica L. Smith], of counsel), for defendants—respondents.
Morris Duffy Alonso & Faley, New York, N.Y. (Iryna S. Krauchanka and Andrea M. Alonso of counsel), for appellant.
Greenberg Law P.C., New York, N.Y. (Jennifer A. Shafer of counsel), for plaintiff—respondent.
Margaret G. Klein (Mauro Lilling Naparty LLP, Woodbury, N.Y. [Caryn L. Lilling, Anthony F. DeStefano, and Jessica L. Smith], of counsel), for defendants—respondents.
RUTH C. BALKIN, J.P., SHERI S. ROMAN, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDERORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and those branches of the motion of the defendant HP Maintenance & Construction, Inc., which were for summary judgment dismissing the complaint insofar as asserted against it and the cross claims for common-law indemnification and contribution against it are granted.
The plaintiff allegedly slipped and fell on snow and ice on a walkway of a cooperative complex in Suffolk County. Thereafter, the plaintiff commenced this action to recover damages for personal injuries against Birchwood on the Green Owners Corp. (hereinafter Birchwood), the owner of the premises, Kaled Management Corp. (hereinafter Kaled), the managing agent of the premises, and HP Maintenance & Construction, Inc. (hereinafter HP), which had entered into a snow-removal contract with Kaled. Birchwood and Kaled filed an answer wherein they asserted cross claims against HP. HP moved for summary judgment dismissing the complaint insofar as asserted against it and all cross claims against it. The Supreme Court, inter alia, denied those branches of HP's motion which were for summary judgment dismissing the complaint insofar as asserted against it and the cross claims for common-law indemnification and contribution against it. HP appeals.
"As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties" ( Rudloff v. Woodland Pond Condominium Assn., 109 A.D.3d 810, 810, 971 N.Y.S.2d 170 ; see Diaz v. Port Auth. of N.Y. & NJ, 120 A.D.3d 611, 990 N.Y.S.2d 882 ; Lubell v. Stonegate at Ardsley Home Owners Assn., Inc., 79 A.D.3d 1102, 1103, 915 N.Y.S.2d 103 ). However, the Court of Appeals has recognized three exceptions to the general rule: "(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" ( Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [citations and internal quotation marks omitted] ).
"As part of its prima facie showing, a contracting defendant is only required to negate the applicability of those Espinal exceptions that were expressly pleaded by the plaintiff or expressly set forth in the plaintiff's bill of particulars" ( Glover v. John Tyler Enters., Inc., 123 A.D.3d 882, 882, 999 N.Y.S.2d 150 ; see Sperling v. Wyckoff Hgts. Hosp., 129 A.D.3d 826, 827, 12 N.Y.S.3d 131 ; Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226 ). Here, given the allegations in the complaint and the plaintiff's bill of particulars, HP established its prima facie entitlement to judgment as a matter of law through evidence that the plaintiff was not a party to its snow-removal contract, and that it thus owed her no duty of care (see Koslosky v. Malmut, 149 A.D.3d 925, 926, 52 N.Y.S.3d 400 ; Leibovici v. Imperial Parking Mgt. Corp., 139 A.D.3d 909, 910, 33 N.Y.S.3d 312 ; Knox v. Sodexho Am., LLC, 93 A.D.3d 642, 939 N.Y.S.2d 557 ; Lubell v. Stonegate at Ardsley Home Owners Assn., Inc., 79 A.D.3d at 1104, 915 N.Y.S.2d 103 ; Foster v. Herbert Slepoy Corp., 76 A.D.3d at 214, 905 N.Y.S.2d 226 ). In opposition, the plaintiff contended that there were triable issues of fact as to whether HP's snow removal efforts had created or contributed to the alleged snow and ice condition. However, her evidentiary submissions failed to raise a triable issue of fact as to whether HP launched a force or instrument of harm (see Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 361, 850 N.Y.S.2d 359, 880 N.E.2d 845 ; Espinal v. Melville Snow Contrs., 98 N.Y.2d at 142, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; Trombetta v. G.P. Landscape Design, Inc., 160 A.D.3d 677, 678, 73 N.Y.S.3d 230 ; Somekh v. Valley Natl. Bank, 151 A.D.3d 783, 786, 57 N.Y.S.3d 487 ; Rudloff v. Woodland Pond Condominium Assn., 109 A.D.3d at 811, 971 N.Y.S.2d 170 ; Foster v. Herbert Slepoy Corp., 76 A.D.3d at 215, 905 N.Y.S.2d 226 ).
With respect to the cross claims, HP established, prima facie, that Birchwood and Kaled were not entitled to contribution, since HP did not owe a duty of reasonable care to the plaintiff or a duty of reasonable care independent of its contractual obligations to Birchwood and Kaled (see Cunningham v. North Shore Univ. Hosp. at Glen Cove Hous., Inc., 123 A.D.3d 650, 651, 998 N.Y.S.2d 406 ; Abramowtiz v. Home Depot USA, Inc., 79 A.D.3d 675, 677, 912 N.Y.S.2d 639 ; Wheaton v. East End Commons Assoc., LLC, 50 A.D.3d 675, 678, 854 N.Y.S.2d 528 ; Roach v. AVR Realty Co., LLC, 41 A.D.3d 821, 824, 839 N.Y.S.2d 173 ). Additionally, HP established, prima facie, that Birchwood and Kaled were not entitled to common-law indemnification, since the evidence showed that the plaintiff's accident was not due solely to HP's alleged negligent performance or nonperformance of an act totally within its province (see Cunningham v. North Shore Univ. Hosp. at Glen Cove Hous., Inc., 123 A.D.3d at 651, 998 N.Y.S.2d 406 ; Proulx v. Entergy Nuclear Indian Point 2, LLC, 98 A.D.3d 492, 493, 949 N.Y.S.2d 178 ; Schultz v. Bridgeport & Port Jefferson Steamboat Co., 68 A.D.3d 970, 972, 891 N.Y.S.2d 146 ; Roach v. AVR Realty Co., LLC, 41 A.D.3d at 824, 839 N.Y.S.2d 173 ). In opposition, Birchwood and Kaled failed to raise a triable issue of fact.
Accordingly, the Supreme Court should have granted those branches of HP's motion which were for summary judgment dismissing the complaint insofar as asserted against it and the cross claims for common-law indemnification and contribution against it.
BALKIN, J.P., ROMAN, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.