SARATA v. CONSTRUCTION (2000)

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

Patricia F. SARATA, Plaintiff-Respondent, v. T & T CONSTRUCTION and Anthony Mingarelli, Jr., Defendants-Appellants.

Decided: November 13, 2000

PRESENT: PINE, J.P., HAYES, WISNER, KEHOE and LAWTON, JJ.

Marni Bogart, Buffalo, for Defendants-Appellants. Michael H. Ranzenhofer, for Plaintiff-Respondent.

Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint. Plaintiff commenced this action to recover damages for injuries that she sustained when she slipped and fell on ice in the parking lot of a nursing home. Defendant T & T Construction (T & T), which is owned by defendant Anthony Mingarelli, Jr., was under contract with the nursing home to provide snow removal services. Although T & T assumed no independent duty of care to plaintiff solely by virtue of that contract, defendants failed to establish that the accident was not caused by T & T's affirmative negligence in the performance of the contract and thus failed to meet their initial burden on the motion (see, Genen v. Metro-North Commuter R. R., 261 A.D.2d 211, 211-212, 690 N.Y.S.2d 213; cf., McKnight v. St. Mary's Hosp., 262 A.D.2d 1027, 691 N.Y.S.2d 805).

Order unanimously affirmed with costs.

MEMORANDUM:

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