MURPHY v. LLP (2001)

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Scarpino, J.), dated October 27, 1999, as granted that branch of the motion of the defendant American Indoor & Outdoor Maintenance Care, Inc., which was to dismiss the complaint insofar as asserted against it, and the defendant Northern Westchester Park Associates, LLP, separately appeals, as limited by its brief, from so much of the same order as granted that branch of the motion of the defendant American Indoor & Outdoor Maintenance Care, Inc., which was for summary judgment dismissing the cross claim against it for common-law indemnification and contribution.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants.

On January 16, 1996, the plaintiff slipped and fell on ice in a parking lot owned by the defendant Northern Westchester Park Associates (hereinafter Northern).   Northern had a written contract with American Indoor & Outdoor Maintenance Care, Inc. (hereinafter American), to provide outdoor maintenance services, including snow removal.

 American's contract with Northern did not constitute “a comprehensive and exclusive property maintenance obligation which the parties could have reasonably expected to displace [the property owner's] duty, as landowner, to maintain the property safely” (Riekers v. Gold Coast Plaza, 255 A.D.2d 373, 374, 679 N.Y.S.2d 709).   Accordingly, American cannot be held liable to third parties for personal injuries arising from negligent performance (see, Landau v. Oceanside Cove Homeowners, 265 A.D.2d 381, 382, 696 N.Y.S.2d 485;  Sapone v. Commercial Bldg. Maintenance Corp., 262 A.D.2d 393, 394, 691 N.Y.S.2d 148).   Further, American cannot be held liable to the plaintiff on the theory that it created or exacerbated a dangerous condition (see, Pavlovich v. Wade Assocs., 274 A.D.2d 382, 710 N.Y.S.2d 615).

 If in fact an injury can be attributable solely to negligent performance or nonperformance of an act solely within the province of the contractor, then the contractor may be held liable for indemnification to an owner (see, 17 Vista Fee Assocs. v. Teachers Ins. & Annuity Assn. of Am., 259 A.D.2d 75, 693 N.Y.S.2d 554;  McBride v. Stewart's Ice Cream Co., 262 A.D.2d 776, 691 N.Y.S.2d 630;  Boskey v. Gazza Props., 248 A.D.2d 344, 346, 669 N.Y.S.2d 624;  Keshavarz v. Murphy, 242 A.D.2d 680, 662 N.Y.S.2d 795).

Under the particular facts of this case, the causes of action for indemnification were properly dismissed (see, Oppenheim v. One School St. Professional Corp., 263 A.D.2d 472, 473, 691 N.Y.S.2d 917).