FALU v. Pioneer Supermarkets, Defendant-Appellant. (1999)

Order, Supreme Court, Bronx County (George Friedman, J.), entered January 26, 1998, which, inter alia, denied defendant Pioneer Supermarkets' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs or disbursements, and the motion granted.   The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint as against it.

 Plaintiff sues for damages for personal injuries allegedly sustained when, on his way to defendant Pioneer Supermarkets' store, located in a strip mall, he slipped and fell on a patch of ice in the parking lot.   He alleges that Pioneer, one of the tenants in the mall, and defendant 233 Associates, L.P., the owner of the parking lot, were negligent in, inter alia, the “ownership, operation, maintenance and control of the parking lot.”   Plaintiff did not notice any salt or sand on the ground, although the parking lot appeared to have been cleared of snow.   There is no evidence in the record as to who removed the snow and plaintiff makes no claim that Pioneer did.   It is undisputed that 233 Associates owned and maintained the parking lot and undertook the responsibility for removing ice and snow therefrom.   Plaintiff's theory of liability stems from the fact that, in its deposition, Pioneer admitted that, in the event of snow, “we have to call the landlord.”   This understanding was confirmed by 233 Associates' representative who, in his deposition, testified that “if the parking lot was not cleaned, we would get a phone call.”   Occasionally, if Pioneer were the caller, 233 Associates or its managing agent would tell it to procure a snow removal company for the job.   On the basis of these undisputed facts, Pioneer moved for summary judgment, asserting that since it did not own or lease the parking lot, it owed no duty to plaintiff.   In opposing the motion, plaintiff argued that Pioneer had assumed a legal duty with respect to the maintenance of the parking lot by taking on the obligation of calling 233 Associates when snow removal was required.   The IAS court denied the motion on the ground that “[t]here exist issues of fact as to whether Pioneer had a duty to remove the snow, or voluntarily assumed such a duty.”   We reverse.

 Plaintiff has not set forth any factual or legal basis upon which Pioneer could be found to have owed him a duty.   As is undisputed and 233 Associates admits, 233 Associates had the sole responsibility to maintain the parking lot, including snow and ice removal.   Equally without merit, as a matter of law, is the argument, accepted by the IAS court, that the “assumed duty” claim saves plaintiff's case.   To prevail on such a theory, a plaintiff must show reliance on the defendant's course of conduct, such that the defendant's conduct placed him or her in a more vulnerable position than he or she would otherwise have been in had the defendant done nothing.  (Heard v. City of New York, 82 N.Y.2d 66, 72, 603 N.Y.S.2d 414, 623 N.E.2d 541;  see, Hartono v. Collins Lumber Corp., 252 A.D.2d 851, 675 N.Y.S.2d 699.)   Here, there is not a hint of any reliance by plaintiff on Pioneer's “assumed duty”, in the event of snow, to call 233 Associates.   If any duty existed on Pioneer's part, it would be to 233 Associates.   The absence of such reliance is fatal to plaintiff's claim.

MEMORANDUM DECISION.