Lingenfelter v. Delevan Terrace Assocs.

• Decision Date: 28 April 2017
• Parties: Mildred LINGENFELTER, Plaintiff–Respondent, v. DELEVAN TERRACE ASSOCIATES, et al., Defendants, and William Krotz Contracting, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 1522
53 N.Y.S.3d 762

Mildred LINGENFELTER, Plaintiff–Respondent,
v.
DELEVAN TERRACE ASSOCIATES, et al., Defendants,
and
William Krotz Contracting, Defendant–Appellant.

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

April 28, 2017.

53 N.Y.S.3d 764

Brown & Kelly, LLP, Buffalo (Paul Callahan of Counsel), for Defendant–Appellant.

Stamm Law Firm, Buffalo (Brian Towey of Counsel), for Plaintiff–Respondent.

PRESENT: SMITH, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND SCUDDER, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries she allegedly sustained when she slipped and fell on ice and snow between parking spaces in the parking lot of an apartment complex owned and operated by defendants Delevan Terrace Associates, Cattaraugus Community Action, Inc., and Cattaraugus Rural Housing Corporation (collectively, apartment defendants). The apartment defendants contracted with defendant William Krotz Contracting (Krotz) to provide snowplowing services for the property. On appeal, Krotz contends that Supreme Court erred in denying its motion for summary judgment seeking dismissal of the amended complaint and any cross claims against it. We agree.

Inasmuch as "a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party"

(Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). Here, any duty that Krotz had with respect to snowplowing on the subject property arose exclusively out of its contract with the apartment defendants (see Church v. Callanan Indus., 99 N.Y.2d 104, 111, 752 N.Y.S.2d 254, 782 N.E.2d 50 ). It is well settled, however, that " ‘a contractual obligation, standing alone, will impose a duty only in favor of the promisee and intended third-party beneficiaries' " (Espinal, 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ), and "will generally not give rise to tort liability in favor of a third party," i.e., a person who is not a party to the contract (id. at 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; see Church, 99 N.Y.2d at 111, 752 N.Y.S.2d 254, 782 N.E.2d 50 ). There are "three situations in 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" (Espinal, 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ).

Even assuming, arguendo, that the allegations in the pleadings are...