Baker v. Buckpitt

• Decision Date: 18 October 2012
• Citation: 2012 N.Y. Slip Op. 07025,952 N.Y.S.2d 666,99 A.D.3d 1097
• Parties: Joanne BAKER, et al., Respondents, v. Gary BUCKPITT, Individually and Doing Business as Early Riser, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 1097
952 N.Y.S.2d 666
2012 N.Y. Slip Op. 07025

Joanne BAKER, et al., Respondents,
v.
Gary BUCKPITT, Individually and Doing Business as Early Riser, et al., Appellants.

Supreme Court, Appellate Division, Third Department, New York.

Oct. 18, 2012.

[952 N.Y.S.2d 667]

Pemberton & Briggs, Schenectady (Paul Briggs of counsel), for appellants.

Fischer, Bessette, Muldowney & Hunter, LLP, Malone (Matthew H. McArdle of counsel), for respondents.

Before: PETERS, P.J., ROSE, SPAIN, McCARTHY and EGAN JR., JJ.

EGAN JR., J.

[99 A.D.3d 1097]Appeal from that part of an order of the Supreme Court (Muller, J.), entered June 29, 2011 in Clinton County, which denied defendants' motion for summary judgment dismissing the complaint against defendant Early Riser I, LLC.

In January 2006, plaintiff Joanne Baker fractured her left ankle when she slipped and fell in the parking lot of her employer, Wyeth Pharmaceuticals, at its facility in the Town of Chazy, Clinton County. As a result, Baker and her husband, derivatively, commenced this action against, among others, defendant Early Riser I, LLC, which had contracted with Wyeth to provide snow removal and salting/sanding services at its Chazy plant and another related facility.

[99 A.D.3d 1098]Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint. Supreme Court dismissed the complaint as to defendants Gary Buckpitt (a member and manager of Early Riser I, LLC) and Early Riser Limited Partnership (the now-dissolved predecessor-in-interest to Early Riser I, LLC), but otherwise denied defendants' motion. Defendants now appeal from that part of Supreme Court's order as denied their motion for summary judgment dismissing the complaint against Early Riser I, LLC (hereinafter defendant).¹

A finding of negligence must be based upon the breach of a duty; hence, our threshold inquiry is whether defendant, as the alleged tortfeasor, owed a duty of care to plaintiffs in the first instance ( see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002];Luby v. Rotterdam Sq., L.P., 47 A.D.3d 1053, 1054, 850 N.Y.S.2d 252 [2008];Seymour v. David W. Mapes, Inc., 22 A.D.3d 1012, 1013, 803 N.Y.S.2d 250 [2005] ). Generally speaking, a limited contractual agreement to provide snow removal services—standing alone—will not give rise to tort liability in favor of a noncontracting injured third party ( see Lubell v. Stonegate at Ardsley Home Owners Assn., Inc., 79 A.D.3d 1102, 1103, 915 N.Y.S.2d 103 [2010];Wheaton v. East End Commons Assoc., LLC, 50 A.D.3d 675, 677, 854 N.Y.S.2d 528 [2008];Castro v. Maple Run Condominium Assn., 41 A.D.3d 412, 413, 837 N.Y.S.2d 729 [2007];see also Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 361, 850 N.Y.S.2d 359, 880 N.E.2d 845 [2007];Espinal v. Melville Snow Contrs., 98 N.Y.2d at 138, 746 N.Y.S.2d 120, 773 N.E.2d 485;

[952 N.Y.S.2d 668]

Grady v. Hoffman, 63 A.D.3d 1266, 1267, 879 N.Y.S.2d 837 [2009] ). The Court of Appeals has recognized three exceptions to this general rule: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] 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 at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [internal quotation marks and citations omitted]; see Gibson v. Dynaserv Indus., Inc., 88 A.D.3d 1135, 1135, 931 N.Y.S.2d 161 [2011];Gadani v. Dormitory Auth. of State of N.Y., 43 A.D.3d 1218, 1219–1220, 841 N.Y.S.2d 709 [2007] ). Although plaintiffs assert that two of the foregoing exceptions potentially are...