Hannigan v. Staples, Inc.

• Decision Date: 31 March 2016
• Docket Number: 521532.
• Citation: 137 A.D.3d 1546,2016 N.Y. Slip Op. 02506,29 N.Y.S.3d 575
• Parties: Patrick J. HANNIGAN, Respondent, v. STAPLES, INC., et al., Defendants, and Inland Western Saratoga Springs Wilton, LLC, et al., Defendants and Third–Party Plaintiffs–Respondents, Hayes Paving Co., Inc., Third–Party Defendant and Fourth–Party Plaintiff–Respondent–Appellant, Wayne Samascott, Fourth–Party Defendant–Appellant–Respondent.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1546
29 N.Y.S.3d 575
2016 N.Y. Slip Op. 02506

Patrick J. HANNIGAN, Respondent,
v.
STAPLES, INC., et al., Defendants,
and
Inland Western Saratoga Springs Wilton, LLC, et al., Defendants and Third–Party Plaintiffs–Respondents,

Hayes Paving Co., Inc., Third–Party Defendant and Fourth–Party Plaintiff–Respondent–Appellant,

Wayne Samascott, Fourth–Party Defendant–Appellant–Respondent.

521532.

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

March 31, 2016.

29 N.Y.S.3d 575

Kelly & Leonard, LLP, Ballston Spa (Thomas E. Kelly of counsel), for fourth-party defendant-appellant-respondent.

Shantz & Belkin, Latham (M. Randolph Belkin of counsel), for Hayes Paving Co., Inc., third-party defendant and fourth-party plaintiff-respondent-appellant.

29 N.Y.S.3d 576

Finkelstein & Partners LLP, Newburgh (George A. Kohl 2nd of counsel), for Patrick J. Hannigan, respondent.

Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany (John W. VanDenburgh of counsel), for defendants and third-party plaintiffs-respondents.

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

PETERS, P.J.

137 A.D.3d 1547

Cross appeal from an order of the Supreme Court (Nolan Jr., J.), entered January 30, 2015 in Saratoga County, which, among other things, denied third-party defendant's motion for summary judgment dismissing the third-party complaint.

At approximately 5:30 p.m. on February 12, 2008, plaintiff allegedly slipped and fell on a patch of ice on the sidewalk in front of a Staples store located in a shopping plaza owned by defendant Inland Western Saratoga Springs Wilton, LLC and managed by defendant Inland U.S. Management, LLC (hereinafter collectively referred to as Inland). Thereafter, plaintiff commenced this action against Inland, among others,¹ to recover for injuries he sustained as a result of the fall. After answering, Inland commenced a third-party action against third-party defendant, Hayes Paving Co., Inc., the contractor hired to perform snow and ice removal at the plaza. Hayes Paving, in turn, commenced a fourth-party action against fourth-party defendant, Wayne Samascott, the individual with whom it had entered into an oral agreement to perform its maintenance responsibilities at the plaza. Samascott joined issue and cross-claimed against Hayes Paving for contribution and indemnification, and Inland amended their answer to assert a claim against Samascott seeking the same relief.

Following discovery, Inland cross-moved for summary judgment dismissing the claims against them or, in the alternative, conditional summary judgment on their third-party complaint against Hayes Paving for common-law and contractual indemnification. Hayes Paving moved for summary judgment dismissing the third-party complaint against it, and Samascott moved for summary judgment dismissing the fourth-party complaint and Inland's claim against him. Supreme Court, among other things, denied both Hayes Paving's and Samascott's motions as well as that portion of Inland's motion seeking summary judgment dismissing plaintiff's claims against them, and granted so much of Inland's motion as sought conditional summary judgment on their contractual indemnification claim against Hayes Paving. This cross appeal by Hayes Paving and Samascott ensued.

We first address the viability of Inland's third-party claim

137 A.D.3d 1548

for contribution. To establish its prima facie entitlement to judgment as a matter of law dismissing the third-party cause of action for contribution, Hayes Paving was required to demonstrate that it neither owed a duty of care directly to plaintiff nor owed a duty of reasonable care to Inland independent of its contractual obligation (see Davis v. Catsimatidis, 129 A.D.3d 766, 768, 12 N.Y.S.3d 141 [2015] ; Bermingham v. Peter, Sr. & Mary L. Liberatore Family Ltd. Partnership, 94 A.D.3d 1424, 1425, 942 N.Y.S.2d 296 [2012] ; Kearsey v. Vestal Park, LLC, 71 A.D.3d 1363, 1365, 897 N.Y.S.2d 542 [2010] ). While a contractual

29 N.Y.S.3d 577

agreement to provide snow or ice removal services, standing alone, will generally not give rise to tort liability in favor of an injured third party (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 141, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ; Baker v. Buckpitt, 99 A.D.3d 1097, 1098, 952 N.Y.S.2d 666 [2012] ; Knox v. Sodexho Am., LLC, 93 A.D.3d 642, 642, 939 N.Y.S.2d 557 [2012] ), a duty to a noncontracting third party will arise “where the contracting party, in failing to exercise...