Schwint v. Bank St. Commons, LLC

• Decision Date: 29 June 2010
• Citation: 74 A.D.3d 1312,904 N.Y.S.2d 220
• Parties: Joan SCHWINT, respondent-appellant, v. BANK STREET COMMONS, LLC, et al., appellants-respondents, Michael Bellantoni, Inc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

904 N.Y.S.2d 220

74 A.D.3d 1312

Joan SCHWINT, respondent-appellant,

v. BANK STREET COMMONS, LLC, et al., appellants-respondents,Michael Bellantoni, Inc., et al., respondents.

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

June 29, 2010.

Eustace & Marquez, White Plains, N.Y. (Diane C. Miceli of counsel), for appellants-respondents.

Gassler & O'Rourke, P.C., Great Neck, N.Y. (Charles P. Gassler of counsel), for respondent-appellant.

Milber Makris Plousadis & Seiden, LLP, White Plains, N.Y. (Lorin A. Donnelly of counsel), for respondent Michael Bellantoni, Inc.

HOWARD MILLER, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

In an action to recover damages for personal injuries, the defendants Bank Street Commons, LLC, Bank Street CommonsMaintenance Association, Inc., and Riverstone Residential NE, LLC, appeal from so much of an order of the Supreme Court, Westchester County (Liebowitz, J.), entered May 5, 2009, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and the plaintiff cross-appeals, as limited by her brief, from so much of the same order as granted that branch of the motion of the defendant Michael Bellantoni, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that the order is reversed insofar as cross-appealed from, on the law, and that branch of the motion of the defendant Michael Bellantoni, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it is denied; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff payable by the defendant Michael Bellantoni, Inc., and the defendants Bank Street Commons, LLC, Bank Street Commons Maintenance Association, Inc., and Riverstone Residential NE, LLC, appearing separately and filing separate briefs.

The plaintiff alleged that she was injured when she slipped and fell as she stepped onto an icy mound of snow on the sidewalk in front of the apartment building where she resided. She thereafter commenced this action against, among others, Bank Street Commons, LLC, Bank Street Commons Maintenance Association, Inc., and Riverstone Residential NE, LLC, the owner and managing agent of the apartment building (hereinafter collectively Bank Street), and Michael Bellantoni, Inc. (hereinafter Bellantoni), which performed snow-removal services pursuant to a written contract with Bank Street. In a bill of particulars, the plaintiff specifically alleged that Bellantoniaffirmatively created the condition on which she fell and that Bellantoni made the condition more dangerous.

Generally, a contractual obligation standing alone will not give rise to tort liability in favor of a third party ( 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 contract to render services may be held liable in tort to a third party: "(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" ( id. at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [internal citations omitted], quoting Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896). A defendant who undertakes to render a service and then "negligently creates or exacerbates a dangerous condition may be liable for any resulting injury" ( Espinal v. Melville Snow Contrs., 98 N.Y.2d at 141-142, 746 N.Y.S.2d 120, 773 N.E.2d 485). Here, Bellantoni failed to make a prima facie showing that, among other things, its snow-removal efforts did not create or exacerbate the allegedly dangerous condition on the sidewalk ( see Keese v. Imperial Gardens Assoc., LLC, 36 A.D.3d 666, 668, 828...