Murphy v. M.B. Real Estate

• Decision Date: 19 October 2000
• Court: New York Supreme Court — Appellate Division
• Parties: (A.D. 2 Dept. 2001) Robert Murphy, plaintiff-appellant, v. M.B. Real Estate Development Corp., et al., defendants, American Indoor & Outdoor Maintenance Care, Inc., defendant-respondent, Northern Westchester Park Associates, LLP, defendant-appellant. 1999-11352 Argued -

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720 N.Y.S.2d 175 (A.D. 2 Dept. 2001) Robert Murphy, plaintiff-appellant,
v.
M.B. Real Estate Development Corp., et al., defendants, American Indoor & Outdoor Maintenance Care, Inc., defendant-respondent, Northern Westchester Park Associates, LLP, defendant-appellant. 1999-11352 SUPREME COURT, APPELLATE DIVISION, SECOND JUDICIAL DEPARTMENT Argued - October 19, 2000
February 5, 2001

Blatt & Koppelman, P.C., Nanuet, N.Y. (Ronald S. Koppelman of counsel), for plaintiff-appellant.

Frankfort & Koltun, Deer Park, N.Y. (Scott A. Koltun and Patrick J. McGrath of counsel), for defendant-appellant.

Marx & Aceste, LLP, White Plains, N.Y. (Sally Ann Zullo and Paul I. Marx of counsel), for defendant-respondent.

GLORIA GOLDSTEIN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO and SANDRA J. FEUERSTEIN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Scarpino, J.), dated

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October 27, 1999, as granted that branch of the motion of the defendant American Indoor & Outdoor Maintenance Care, Inc., which was to dismiss the complaint insofar as asserted against it, and the defendant Northern Westchester Park Associates, LLP, separately appeals, as limited by its brief, from so much of the same order as granted that branch of the motion of the defendant American Indoor & Outdoor Maintenance Care, Inc., which was for summary judgment dismissing the cross claim against it for common-law indemnification and contribution.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants.

On January 16, 1996, the plaintiff slipped and fell on ice in a parking lot owned by the defendant Northern Westchester Park Associates (hereinafter Northern). Northern had a written contract with American Indoor & Outdoor Maintenance Care, Inc. (hereinafter American), to provide outdoor maintenance services, including snow removal.

American's contract with Northern did not constitute "a comprehensive and exclusive property maintenance obligation which the parties could have reasonably expected to displace [the property owner's] duty, as landowner, to maintain the property safely" (Riekers v Gold Coast Plaza, 255 A.D.2d 373, 374). Accordingly, American cannot be held liable to third parties for personal injuries arising from negligent performance (see, Landau v Ocean Side Cove Homeowners, 265 A.D.2d 381, 382; Sapone v...