Christopher Devanny of K/M’s New York Office recently won a Motion for Summary Judgment in a Kings County Supreme Court case involving injuries sustained from a slip and fall on ice located on a sidewalk abutting a residential building. The decision was issued by Justice Gloria M. Dabiri.
Plaintiff sued the property owner for allegedly failing to maintain the premises. The property owner filed a third party action against K/M’s client, the snow removal contractor. The property owner sought common law and contractual indemnification/contribution. The plaintiff later amended the complaint to add the contractor as a direct defendant.
As a general rule, a limited contractual obligation to provide snow removal services does not render a snow removal contractor liable in tort for the personal injuries sustained by third parties. However, the New York Court of Appeals has recognized three exceptions to this rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; or (3) where the contracting party has entirely displaced another party’s duties to maintain the subject premises safely. Espinal v. Melville Snow Contractors Inc. 98 NY2d 136, 140 (2002).
The Court determined that K/M’s client made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that the plaintiff was not a party to its snow removal contract, and, therefore was not owed a duty of care by K/M’s client.
The Court further held that the plaintiff and the property owner failed to raise a triable issue of fact as to the applicability of an exception to the general rule. With regard to the first exception, it was undisputed that contractor was last at the premises four days before the plaintiff’s fall. The Court determined that by merely plowing the snow the contractor could not be said to have created or exacerbated a dangerous condition. Moreover, pursuant to the contract, the contractor was not obligated to apply salt or sand, unless specifically directed to do so by the owner. The court concluded that there was no evidence that the contractor was negligent in performing snow removal services on the day of the plaintiff’s fall.
The Court also determined that there was no evidence that the plaintiff relied to his detriment on the snow removal contractor’s performance of its duties. The court reasoned that the plaintiff testified that he was unaware that the property owner had retained an outside company to perform snow removal. Moreover, plaintiff testified that he was walking on the sidewalk, an area of the property for which the property owner, and not the contractor was responsible for. Thus, the plaintiff’s reliance, if any, would have been on the property owner.
Finally, the testimony of the parties and the contractor demonstrated that the duty of the property owner to maintain the premises was not displaced. The contract between the property owner and the snow removal contractor provided that the contractor was only to remove snow from the driveways and parking lot, and that pedestrian walkways were “specifically excluded.” Moreover, the owner was required to monitor and inspect the premises after the contractor completed its job.
For further information about this case, please contact Christopher Devanny at email@example.com.