Foster v. Herbert Slepoy Corp.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MASTRO
• Citation: Foster v. Herbert Slepoy Corp., 905 N.Y.S.2d 226, 76 A.D.3d 210 (N.Y. App. Div. 2010)
• Decision Date: 22 June 2010
• Parties: Paula FOSTER, plaintiff-respondent, v. HERBERT SLEPOY CORP., et al., defendants-respondents, Kerry Clancy, appellant.

905 N.Y.S.2d 226

76 A.D.3d 210

Paula FOSTER, plaintiff-respondent,

v. HERBERT SLEPOY CORP., et al., defendants-respondents,Kerry Clancy, appellant.

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

June 22, 2010.

Gorton & Gorton LLP, Mineola, N.Y. (Thomas P. Gorton of counsel), for appellant.

Sullivan Papain Block McGrath & Cannavo P.C., New York, N.Y. (Stephen C. Glasser of counsel), for plaintiff-respondent.

Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G. Christesen of counsel), for defendants-respondents.

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.

MASTRO, J.P.

The instant appeal presents us with an opportunity to discuss and clarify what a snow-removal contractor must show to establish its prima facie entitlement to summary judgment.

The plaintiff allegedly sustained personal injuries when she slipped and fell on snow and ice in the driveway/parking lot area of the cooperative complex where she resides. The complexis owned by the defendant North and South Lewis Place Owners Corp. and managed by the defendant Herbert Slepoy Corp. (hereinafter together the owners). Pursuant to a longstanding oral agreement with Herbert Slepoy Corp., the defendant Kerry Clancy performed snow plowing services for the driveway/parking lot areas at the complex, and had done so on the day of the plaintiff's accident, although he had not applied salt or sand to the area after plowing.

The plaintiff commenced this action against the defendants, alleging, inter alia, that Clancy was negligent in his performance of snow removal services. The owners cross-claimed against Clancy for contribution, contractual indemnification, and common-law indemnification based in part on his alleged unspecified "affirmative negligence." In a subsequent bill of particulars, the plaintiff generally alleged that Clancy had created the condition on which she fell or permitted it to exist by failing to properly remove it and by failing to apply salt or sand to the area. She claimed that Clancy "actively created and/or caused said dangerous condition to exist by not properly removing all of the snow and ice in the parking lot/driveway."

Following the completion of discovery, Clancy moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against him, contending that he merely had a limited agreement to perform snow clearing services at the premises, which did not give rise to a duty of care running from him to the plaintiff and, thus, precluded recovery by the plaintiff against him under a negligence theory. He further maintained that no cross claim for contribution or indemnification could lie against him under the circumstances of the case.

In opposing the motion, the owners acknowledged that Clancy's snow plowing contract was not with the plaintiff and that the performance of such services ordinarily would not give rise to tort liability to a third party such as the plaintiff. However, they argued that Clancy nevertheless failed to sustain his prima facie burden because he had not made an additional showing eliminating any potential issues of fact as to whether he launched a force or instrument of harm by performing his snow plowing activities, or whether the oral agreement constituted a comprehensive property maintenance contract by which he assumed the owners' duty to maintain the premises in a safe condition. In any event, they contended that they had succeeded in raising triable issues of fact with respect to these matters.

The plaintiff also opposed Clancy's motion, similarly contending that Clancy failed to negate all factual issues as to whetherhe had launched a force or instrument of harm or had entered into a comprehensive and exclusive property maintenance contract. Furthermore, the plaintiff claimed that she detrimentally relied, "albeit unknowingly," upon Clancy's proper performance of his contractual snow plowing duties. As the owners did, the plaintiff also insisted that triable questions of fact existed with regard to these issues.

In reply, Clancy insisted that his mere failure to remove all of the snow and ice by plowing did not create or exacerbate a dangerous condition, that the snow plowing agreement did not constitute a comprehensive maintenance contract because the owners' personnel still performed some snow clearing activities in the driveway/parking lot area, and that the plaintiff could not have detrimentally relied on his contractual services because the plaintiff testified at her deposition that she was not even aware of Clancy or the agreement.

In the order appealed from, the Supreme Court denied Clancy's motion in its entirety, finding that an issue of fact existed with regard to whether Clancy was required to apply salt or sand to the driveway/parking lot area as part of his contractual duties. We now modify by granting Clancy's motion for summary judgment to the extent of dismissing the complaint and the cross claims for contribution and contractual indemnification insofar as asserted against him.

In Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485, the Court of Appeals held that "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party." However, the Court identified three exceptions to the general rule, pursuant to which "a party who enters into a contract to render services may be said to have assumed a duty of care-and thus be potentially liable in tort-to third persons: (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" ( id. at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [internal quotation marks and citations omitted]; see Church v. Callanan Indus., 99 N.Y.2d 104, 111-112, 752 N.Y.S.2d 254, 782 N.E.2d 50; Folkl v. McCarey Landscaping, Inc., 66 A.D.3d 825, 887 N.Y.S.2d 239;Crosthwaite v. Acadia Realty Trust, 62 A.D.3d 823, 824, 879 N.Y.S.2d 554).

Contrary to the contentions of the owners and the plaintiff, Clancy demonstrated his prima facie entitlement to judgment as a matter of law under the circumstances of this case merely by coming forward with proof that the plaintiff was not a party to his oral snow removal contract and that he therefore owed no duty of care to the plaintiff ( see Wheaton v. East End Commons Assoc., LLC, 50 A.D.3d 675, 677, 854 N.Y.S.2d 528; Baratta v. Home Depot USA, 303 A.D.2d 434, 434-435, 756 N.Y.S.2d 605). Although he, in fact, did so, Clancy was not required to negate the possible applicability of any of the three exceptions set forth in Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 and its progeny as part of his prima facie showing, since the plaintiff never alleged facts in her complaint or in her bill of particulars which would establish that any of those exceptions applied herein. While the owners and the plaintiff cite to numerous decisions which held that snow removal contractors had to meet their prima facie burdens on their motions for summary judgment by demonstrating the inapplicability of one or more of the Espinal exceptions ( see e.g. Lattimore v. First Mineola Co., 60 A.D.3d 639, 642-643, 874 N.Y.S.2d 253; Georgotas v. Laro Maintenance Corp., 55 A.D.3d 666, 667, 865 N.Y.S.2d 651; Keese v. Imperial Gardens Assoc., LLC, 36 A.D.3d 666, 667-668, 828 N.Y.S.2d 204), the prima facie showing which a defendant must make on a motion for summary judgment is governed by theallegations of liability made by the plaintiff in the pleadings ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Linarello v. Colin Serv. Sys., Inc., 31 A.D.3d 396, 397, 817 N.Y.S.2d 660; Dappio v. Port Auth. of N.Y. & N.J., 299 A.D.2d 310, 311-312, 749 N.Y.S.2d 150). Here, Clancy made the requisite prima facie showing based on the plaintiff's allegations, and the burden shifted to the plaintiff to come forward with evidence...