Lorquet v. Timoney Tech. Inc.

• Decision Date: 13 November 2020
• Docket Number: 552,CA 19-01018
• Citation: 188 A.D.3d 1584,135 N.Y.S.3d 698
• Parties: Mark C. LORQUET and Helen Lorquet, Plaintiffs-Respondents, v. TIMONEY TECHNOLOGY INC., and Devon Facility Management LLC, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1584

135 N.Y.S.3d 698

Mark C. LORQUET and Helen Lorquet, Plaintiffs-Respondents,

v.TIMONEY TECHNOLOGY INC., and Devon Facility Management LLC, Defendants-Appellants.

552

CA 19-01018

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

Entered: November 13, 2020

NASH CONNORS, P.C., BUFFALO (JAMES J. NASH OF COUNSEL), FOR DEFENDANT-APPELLANT TIMONEY TECHNOLOGY INC.

LAW OFFICES OF JOHN WALLACE, BUFFALO (JAMES J. NAVAGH OF COUNSEL), FOR DEFENDANT-APPELLANT DEVON FACILITY MANAGEMENT LLC.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

PRESENT: SMITH, J.P., TROUTMAN, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Mark C. Lorquet (plaintiff) when he slipped and twisted his knee while stepping over a "wind row" of snow in the parking lot at his place of work. Plaintiff's employer had contracted with defendant Devon Facility Management LLC (Devon) for property maintenance services, including snow and ice removal from the parking lot, and Devon subcontracted the snow and ice removal work to defendant Timoney Technology Inc. (Timoney). Timoney moved for summary judgment dismissing the complaint and Devon's cross claims against it, and Devon moved for summary judgment dismissing the complaint against it and, alternatively, for summary judgment on its second cross claim against Timoney, for contractual indemnification. Timoney and Devon now appeal from an order that denied both motions. We affirm.

Contrary to Timoney's contention, Supreme Court properly determined that Timoney failed to meet its initial burden on its motion of establishing that it owed no duty to plaintiff based on a storm in progress at the time of the incident. The evidence submitted by Timoney in support of its motion failed to establish that Timoney's workers did not create or exacerbate the allegedly hazardous condition that caused plaintiff's injuries (see Garrett v. 1030 E. Genesee Co. , 169 A.D.3d 1433, 1433-1434, 91 N.Y.S.3d 764 [4th Dept. 2019] ; DeMonte v. Chestnut Oaks at Chappaqua , 134 A.D.3d 662, 664, 20 N.Y.S.3d 591 [2d Dept. 2015] ; see generally Smith v. United Ref. Co. of Pennsylvania , 148 A.D.3d 1733, 1734, 52 N.Y.S.3d 757 [4th Dept. 2017] ). Timoney's representative testified at his deposition that Timoney did not keep records or time sheets establishing what work was done, or by whom, on a particular day, and thus Timoney could not offer any evidence that its workers did not engage in snowplowing efforts on the day in question or, if they did so, that they kept the parking lot free of wind rows, as required by the subcontract (see generally Rak v. Country Fair, Inc. , 38 A.D.3d 1240, 1241, 831 N.Y.S.2d 794 [4th Dept. 2007] ).

Timoney likewise failed to meet its burden of establishing that it owed no duty of care to plaintiff on the ground that plaintiff is not a party to the subcontract. "As a general rule, a contractual obligation, standing alone, does not give rise to tort liability in favor of a third party" ( Grove v. Cornell Univ. , 151 A.D.3d 1813, 1815, 54 N.Y.S.3d 260 [4th Dept. 2017] ). Timoney asserted that none of the Espinal exceptions to that general rule applies (see generally Espinal v. Melville Snow Contrs. , 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ), but it is well settled that a contractor who creates or exacerbates a hazardous snow condition by plowing may be held liable to a third party under the first Espinal exception, for launching a force or instrument of harm (see Chamberlain v. Church of the Holy Family , 160 A.D.3d 1399, 1403, 75 N.Y.S.3d 718 [4th Dept. 2018] ; Meyers-Kraft v. Keem , 64 A.D.3d 1172, 1173-1174, 883 N.Y.S.2d 838 [4th Dept. 2009] ; Rak , 38 A.D.3d at 1241, 831 N.Y.S.2d 794 ). In light of Timoney's failure to meet its initial burden, we do not examine the sufficiency of the plaintiffs' opposing submissions (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; Rak , 38 A.D.3d at 1241-1242, 831 N.Y.S.2d 794 ).

Contrary to Timoney's further contention, the court properly denied that part of its motion seeking summary judgment dismissing Devon's cross claim for contractual indemnification. Timoney and Devon agree that the indemnification provision in the subcontract provides that Timoney will indemnify Devon for any claim or injury stemming from Timoney's snowplowing work, even if the claim or injury was partially caused by Devon's negligence. Timoney therefore has no contractual obligation to indemnify Devon for any claim or injury that is solely attributable to Devon's negligence. We agree with the court that Timoney failed to establish that its own negligence was not a cause of the accident, and thus that Timoney failed to establish as a matter of law that plaintiff's injuries were solely attributable to Devon's negligence (see generally Chamberlain , 160 A.D.3d at 1403-1404, 75 N.Y.S.3d 718 ).

Contrary to Devon's contention on its appeal, the court properly determined that Devon is not entitled to summary judgment dismissing the complaint against it. Devon contends that it is entitled to summary judgment because it owed no duty of care to plaintiff, and its subcontract with Timoney did not give rise to such a duty. Although "[t]he general rule in New York is that a party who retains an independent...