Lubell v. Stonegate at Ardsley Home Owners Ass'n, Inc.

• Decision Date: 28 December 2010
• Parties: Terry LUBELL, plaintiff-appellant, v. STONEGATE AT ARDSLEY HOME OWNERS ASSOCIATION, INC., et al., defendants-appellants, Westchester Hills Landscaping, Inc., respondent.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 103

79 A.D.3d 1102

Terry LUBELL, plaintiff-appellant,

v.STONEGATE AT ARDSLEY HOME OWNERS ASSOCIATION, INC., et al., defendants-appellants,Westchester Hills Landscaping, Inc., respondent.

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

Dec. 28, 2010.

Gary B. Pillersdorf & Associates, P.C., New York, N.Y. (Paul A. Hayt of counsel), for plaintiff-appellant.

Murphy & Lambiase, Goshen, N.Y. (George A. Smith of counsel), for defendants-appellants.

Armienti, DeBellis, Guglielmo & Rhoden, New York, N.Y. (Michael Moriello of counsel), for respondent.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Liebowitz, J.), entered December 17, 2009, as granted that branch of the motion of the defendant Westchester Hills Landscaping, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it, and the defendants Stonegate at Ardsley Home Owners Association, Inc., and Quantum Property Management, Ltd., separately appeal, as limited by their brief, from so much of the same order as granted the motion of the defendant Westchester Hills Landscaping, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against it and denied their cross motion to convert their cross claims into a third-party action.

ORDERED that the appeal by the defendants Stonegate at Ardsley Home Owners Association, Inc., and Quantum Property Management, Ltd., from so much of the order as granted that branch of the motion of the defendant Westchester HillsLandscaping, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it is dismissed, as those defendants are not aggrieved by the portion of the order appealed from ( see CPLR 5511; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132); and it is further,

ORDERED that the order is affirmed insofar as appealed from by the plaintiff and insofar as reviewed on the appeal by the defendants Stonegate at Ardsley Home Owners Association, Inc., and Quantum Property Management, Ltd.; and it is further,

ORDERED that one bill of costs is awarded to the defendant Westchester Hills Landscaping, Inc., payable by the plaintiff and the defendants Ardsley Home Owners Association, Inc., and Quantum Property Management, Ltd., appealing separately and filing separate briefs.

On or about March 18, 2007, the plaintiff allegedly slipped and fell on black ice in the street in her condominium complex in Ardsley. The plaintiff commenced this action against the defendant Stonegate at Ardsley Home Owners Association, Inc. (hereinafter Stonegate), its managing agent, the defendant Quantum Property Management, Ltd. (hereinafter Quantum), and the defendant Westchester Hills Landscaping, Inc. (hereinafter WHL), which performed snow removal at the premises. The plaintiff alleged, among other things, that the black ice which caused her fall resulted from the melting and re-freezing of snow that had been plowed into a pile on a nearby lawn two days prior to her accident. Stonegate and Quantum joined issue and asserted cross claims against WHL for common-law and contractual indemnification and contribution. WHL moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. The plaintiff opposed the motion, as did Stonegate and Quantum. Stonegate and Quantum also cross-moved to convert their cross claims asserted against WHL into a third-party action in the event that WHL's motion was granted. The Supreme Court granted WHL's motion in its entirety and denied the cross motion. We affirm.

"A limited contractual undertaking to provide snow removal services generally does not render the contractor liable in tort for the personal injuries of third parties" ( Wheaton v. East End Commons Assoc., LLC, 50 A.D.3d 675, 677, 854 N.Y.S.2d 528). "Generally, a contractual obligation standing alone will not give rise to tort liability in favor of a third party" ( Schwint v. Bank St. Commons, LLC, 74 A.D.3d 1312, 1313, 904 N.Y.S.2d 220; see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485). "However, the Court of Appeals has identified three situations wherein the party who enters into a...