VILORIO v. Eastern Horizon Landscaping, Inc., appellant. (2006)

In an action to recover damages for personal injuries, the defendant Eastern Horizon Landscaping, Inc., appeals from so much of an order of the Supreme Court, Suffolk County (Werner, J.), dated August 30, 2005, as denied that branch of its motion which was for summary judgment dismissing the cross claim for common-law indemnification against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Contrary to the contention of the defendant Eastern Horizon Landscaping, Inc. (hereinafter Eastern), the Supreme Court properly denied that branch of its motion which was for summary judgment dismissing the cross claim for common-law indemnification against it. Substantial factual issues exist regarding whether Eastern improperly performed its contractual snow plowing duties by piling snow up against a walkway which was adjacent to the parking lot it was plowing, thereby creating an obstacle to pedestrian traffic and facilitating the formation of ice at that location (see generally Knee v. Trump Vil. Constr. Corp., 15 A.D.3d 545, 791 N.Y.S.2d 576;  Reznicki v. Strathallan Hotel, 12 A.D.3d 156, 786 N.Y.S.2d 139;  Karalic v. City of New York, 307 A.D.2d 254, 762 N.Y.S.2d 271).  “[S]ince there are questions of fact as to whether the accident resulted from [Eastern's] alleged failure to fulfill its obligations pursuant to the terms of the snow removal contract” (Richter v. Hunter's Run Homeowners Assn., 14 A.D.3d 601, 602, 787 N.Y.S.2d 903;  see Mitchell v. Fiorini Landscape, 284 A.D.2d 313, 314, 726 N.Y.S.2d 673), the cross claim for common-law indemnification cannot be resolved as a matter of law (see e.g. Peycke v. Newport Media Acquisition II, 17 A.D.3d 338, 793 N.Y.S.2d 92;  Franklin v. Omni Sagamore Hotel, 5 A.D.3d 348, 772 N.Y.S.2d 534;   Baratta v. Home Depot USA, 303 A.D.2d 434, 756 N.Y.S.2d 605;  Nizam v. Friol, 294 A.D.2d 901, 741 N.Y.S.2d 805;  Cochrane v. Warwick Assocs., 282 A.D.2d 567, 723 N.Y.S.2d 506;  Phillips v. Young Men's Christian Assn., 215 A.D.2d 825, 625 N.Y.S.2d 752).