TORELLA v. Eric Mooney Trucking & Excavating, Eric Mooney, Eric Mooney Trucking & Excavating, Inc., Eric Mooney, Doing Business as Eric Mooney Trucking & Excavating, and Eric Mooney, Doing Business as Eric Mooney Trucking & Excavating, Inc., Defendants-Respondents-Appellants. (2003)

 Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Shirley Torella (plaintiff) when she slipped and fell on a patch of ice in a parking lot upon arriving at work.   Supreme Court properly denied the motion of defendant Benderson Development Company, Inc. and the remaining Benderson defendants for summary judgment dismissing the complaint against them.   Even assuming, arguendo, that those defendants established their entitlement to judgment as a matter of law on the theory that a storm was in progress when plaintiff fell, we conclude that plaintiffs raised a triable issue of fact whether “the icy condition existed prior to the storm” (Campagnano v. Highgate Manor of Rensselaer, 299 A.D.2d 714, 715, 749 N.Y.S.2d 595;  cf.  Stalker v. Crestview Cadillac Corp., 284 A.D.2d 977, 978, 726 N.Y.S.2d 533;  Chapman v. City of New York, 268 A.D.2d 498, 702 N.Y.S.2d 355).   Plaintiffs further raised a triable issue of fact whether those defendants had constructive notice of the icy condition, i.e., whether that “condition was visible and apparent and existed for a sufficient period of time prior to the accident to permit [those] defendants to discover it and take corrective action” (Boyko v. Limowski, 223 A.D.2d 962, 964, 636 N.Y.S.2d 901;  see May v. American Red Cross, 287 A.D.2d 418, 419, 731 N.Y.S.2d 733;  see generally Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-838, 501 N.Y.S.2d 646, 492 N.E.2d 774).

 We conclude, however, that the court properly granted that part of the cross motion of defendant Eric Mooney Trucking & Excavating and the remaining Mooney defendants (collectively, Mooney defendants) seeking summary judgment dismissing the complaint against them.   Because the Mooney defendants are businesses that contracted to provide services to the property owner, they could not be liable in tort to a third party unless they “launched a force or instrument of harm” (H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896), plaintiff detrimentally relied on their continued performance of the contract, or the contract was so comprehensive and exclusive that it entirely displaced the property owner's duty to maintain the premises safely (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Engel v. Eichler, 290 A.D.2d 477, 479, 736 N.Y.S.2d 676).   The first two exceptions to the general rule concerning nonliability in tort to a third party are not relevant here.   With respect to the third exception, the contract at issue permitted the Mooney defendants to use their “best judgment” in rendering snow plowing services, but it also gave the property owner the right to request additional services, and employees of the property owner monitored the performance of the snow plowing contract.   Thus, the contract was not so comprehensive or exclusive as to create a duty by the Mooney defendants to plaintiff (see e.g. Espinal, 98 N.Y.2d at 141, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Kozak v. Broadway Joe's, 296 A.D.2d 683, 685, 745 N.Y.S.2d 139).

 The court properly denied that part of the cross motion of the Mooney defendants seeking summary judgment dismissing the cross claims for contractual and common-law indemnification.   The contract required the Mooney defendants to indemnify the property owner only if the Mooney defendants were negligent or the loss arose out of the Mooney defendants' performance of the contract, and there are triable issues of fact with respect to the culpability of each of the defendants (see Hernandez v. Two E. End Ave. Apt. Corp., 303 A.D.2d 556, 757 N.Y.S.2d 65;  Engel, 290 A.D.2d at 479, 736 N.Y.S.2d 676;  Adams v. Glass Fab, 212 A.D.2d 972, 974, 624 N.Y.S.2d 705).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: