ROESCH v. HILLICK (1998)

Plaintiffs commenced this action to recover for injuries Virginia A. Roesch (plaintiff) allegedly sustained when she slipped and fell on snow and ice in the parking lot of her employer, Miller Brewing Co. (Miller).  At the time of the accident, defendant Donald J. Hillick, d/b/a Grow and Mow (Grow and Mow), had an agreement with Miller to plow, salt and remove snow from the parking lot.   Defendants Pinkerton's Security Systems, Inc., and Pinkerton's, Inc., d/b/a Pinkerton's Security and Investigation Services (collectively, Pinkerton's), had an agreement to provide security at the Miller plant.

 Supreme Court erred in denying defendants' motions for summary judgment dismissing the complaint.   Grow & Mow established as a matter of law that it did not assume a duty of reasonable care to plaintiff by virtue of its snow removal contract with Miller (see, Autrino v. Hausrath's Landscape Maintenance, 231 A.D.2d 943, 647 N.Y.S.2d 638, lv. denied 89 N.Y.2d 812, 657 N.Y.S.2d 405, 679 N.E.2d 644;  Phillips v. Young Men's Christian Assn., 215 A.D.2d 825, 826, 625 N.Y.S.2d 752).

 Because Pinkerton's failed to submit its entire agreement with Miller, it failed to meet its burden of establishing that it did not assume “a duty to exercise reasonable care to prevent foreseeable harm to the plaintiff” (Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226, 557 N.Y.S.2d 286, 556 N.E.2d 1093;  see, Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 611 N.Y.S.2d 817, 634 N.E.2d 189).   Pinkerton's, however, established its entitlement to summary judgment by submitting proof that, at the time plaintiff fell, a snow storm was in progress.   Pinkerton's “had no duty to take corrective action during the progress of the storm” (Siegel v. Molino, 236 A.D.2d 879, 653 N.Y.S.2d 759).   Plaintiffs' submissions in opposition to the motion fail to raise a triable issue of fact whether Pinkerton's had a reasonable opportunity to correct the hazardous condition (see, Lopez v. Picotte Cos., 223 A.D.2d 823, 824, 635 N.Y.S.2d 818;  Fusco v. Stewart's Ice Cream Co., 203 A.D.2d 667, 610 N.Y.S.2d 642) or whether any action taken by Pinkerton's exacerbated the natural hazard created by the storm (see, Marrone v. Verona, 237 A.D.2d 805, 654 N.Y.S.2d 481, lv. dismissed 90 N.Y.2d 885, 661 N.Y.S.2d 827, 684 N.E.2d 277, rearg. denied 91 N.Y.2d 849, 667 N.Y.S.2d 685, 690 N.E.2d 494;  Gentile v. Rotterdam Sq., 226 A.D.2d 973, 974, 640 N.Y.S.2d 696).

Order unanimously reversed on the law without costs, motions granted and complaint dismissed.

MEMORANDUM: