Castro v. Maple Run Condominium Association

• Decision Date: 05 June 2007
• Docket Number: 2006-01860.
• Citation: 837 N.Y.S.2d 729,2007 NY Slip Op 04771,41 A.D.3d 412
• Parties: NIEVES CASTRO, Respondent, v. MAPLE RUN CONDOMINIUM ASSOCIATION, Respondent, and R.J. LANDSCAPING DESIGN, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

41 A.D.3d 412

837 N.Y.S.2d 729

2007 NY Slip Op 04771

NIEVES CASTRO, Respondent, v. MAPLE RUN CONDOMINIUM ASSOCIATION, Respondent, and R.J. LANDSCAPING DESIGN, INC., Appellant.

2006-01860.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided June 5, 2007.

In an action to recover damages for personal injuries, the defendant R.J. Landscaping Design, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), dated January 18, 2006, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the order is reversed insofar as appealed from, on the law, the motion of the defendant R.J. Landscaping Design, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted; and it is further,

Ordered that one bill of costs is awarded to the defendant R.J. Landscaping Design, Inc.

On December 25 and 26, 2002 after approximately seven inches of snow had fallen, the defendant R.J. Landscaping Design, Inc. (hereinafter R.J. Landscaping), plowed the roadway of the Maple Run Condominium Association (hereinafter Maple Run), pursuant to a snow removal contract. Although R.J. Landscaping had applied salt and sand after previous storms, it did not apply any on this occasion because it determined there would not be an icy condition and no one from Maple Run instructed it to do so. On December 28, 2002 the plaintiff was injured when she slipped and fell on ice while she was walking from Maple Run's roadway to the driveway of her condominium unit. She commenced this action alleging that R.J. Landscaping negligently removed the snow from the premises and Maple Run failed to keep it in a reasonably safe condition. R.J. Landscaping moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, arguing that it owed no duty to the plaintiff under its snow removal contract. Maple Run subsequently moved for summary judgment dismissing the complaint on the ground that it lacked notice of any icy condition and for summary judgment on its cross claims for contribution and indemnification. The Supreme Court denied R.J. Landscaping's motion, finding there was a triable issue of fact as to whether the plaintiff had relied upon R.J. Landscaping's previous salting and sanding of the roadway. The Supreme Court denied Maple Run's motion as untimely, finding that no good cause had been shown for the delay.

Generally, a snow removal contractor's contractual obligation, standing alone, will not give rise to tort liability in favor of third parties unless: (1) the snow removal contractor, in failing to exercise reasonable care in the performance of its duties, launched a force or instrument of harm; (2) the plaintiff detrimentally relied on the continued performance of the snow removal contractor's duties; or (3) the snow removal contractor has entirely displaced the owner's duty to maintain the premises safely (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]).

The Supreme Court erred in denying the motion of R.J. Landscaping. Review of the snow removal contract reveals that it was not a comprehensive and exclusive property...