ARMBRUSTER v. IN THE WOODS ASSOCIATION INC (1998)

 Plaintiff was injured when she slipped and fell on a patch of black ice on the sidewalk outside her daughter's townhouse.   She commenced this negligence action against the homeowners' association, defendant In the Woods Association, Inc. (Association), and the snow removal contractor, defendant Tim Kerr Landscaping (Kerr).   Supreme Court properly granted the motion of Kerr for summary judgment dismissing the complaint against it.   Kerr did not assume a duty of care to plaintiff by virtue of its snow removal contract with the Association (see, Roesch v. Hillick, 247 A.D.2d 927, 668 N.Y.S.2d 787;  Pieri v. Forest City Enters., 238 A.D.2d 911, 661 N.Y.S.2d 133;  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).  There is no proof that plaintiff detrimentally relied upon the continued performance by Kerr of its obligations under its contract, or that Kerr had any independent duty to protect plaintiff (see, Phillips v. Young Men's Christian Assn., 215 A.D.2d 825, 826, 625 N.Y.S.2d 752).   However, because it cannot be said as a matter of law that the Association assumed no responsibility or control over the icy sidewalk, the court erred in granting the motion of the Association for summary judgment dismissing the complaint against it (cf., Barnes v. Stone-Quinn, 195 A.D.2d 12, 16, 606 N.Y.S.2d 485;  Hoberman v. Kids “ R” Us, 187 A.D.2d 187, 190-191, 593 N.Y.S.2d 39;  McGill v. Caldors, Inc., 135 A.D.2d 1041, 1043, 522 N.Y.S.2d 976).   While the Association argues that, under its corporate documents, individual home owners are exclusively responsible for applying calcium, sand or salt to their sidewalks, there is proof that Kerr was responsible under its contract to make those applications at the direction of the Association.   We do not consider the argument of the Association, raised for the first time on appeal, that it did not have actual or constructive notice of the icy condition.

Order and judgment unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: