BICKELMAN v. (and a third-party action). (2008)

In a consolidated action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered December 21, 2006, which granted the motion of the defendant Frank Polito for summary judgment dismissing the complaint insofar as asserted against him, and granted the separate motion of the defendant Herrill Bowling Corp., d/b/a Herrill Lanes, for summary judgment dismissing the complaint insofar as asserted against it, (2), as limited by their brief, from so much of an order of the same court entered June 28, 2007, as, upon reargument, adhered to the original determination, and (3) from a judgment of the same court dated August 22, 2007, which, upon the orders, is in favor of the defendants Herrill Bowling Corp., d/b/a Herrill Lanes, and Frank Polito and against them, dismissing the complaint insofar as asserted against them.

ORDERED that the appeals from the orders are dismissed;  and it is further,

ORDERED that the judgment is modified, on the law, by deleting the provision thereof dismissing the complaint insofar as asserted against the Herrill Bowling Corp., d/b/a Herrill Lanes;  as so modified, the judgment is affirmed, with one bill of costs payable to the defendant Frank Polito by the plaintiffs and one bill of costs payable to the plaintiffs by the defendant Herrill Bowling Corp., d/b/a Herrill Lanes, the motion of the defendant Herrill Bowling Corp., d/b/a Herrill Lanes, for summary judgment dismissing the complaint insofar as asserted against it is denied, the orders are modified accordingly, the complaint is reinstated against said defendant, and the action against the defendant Herrill Bowling Corp., d/b/a Herrill Lanes, and Fred Schumacher, Jr., is severed.

The appeals from the orders must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

 Generally, a snow removal contractor's contractual obligation, standing alone, will not give rise to tort liability in favor of third parties unless:  (1) the snow removal contractor, in failing to exercise reasonable care in the performance of its duties, launched a force or instrument of harm;  (2) the plaintiff detrimentally relied on the continued performance of the snow removal contractor's duties;  or (3) the snow removal contract has entirely displaced the landowner's duty to safely maintain the premises (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Castro v. Maple Run Condominium Assn., 41 A.D.3d 412, 413, 837 N.Y.S.2d 729).   On his motion for summary judgment, the defendant Frank Polito, who entered into a snow removal contract with the defendant Herrill Bowling Corp., d/b/a Herrill Lanes (hereinafter Herrill), to plow Herrill's premises, demonstrated his prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Polito established that the contract was not a comprehensive and exclusive property maintenance obligation intended to displace Herrill's duty to maintain the premises in a reasonably safe condition (see Castro v. Maple Run Condominium Assn., 41 A.D.3d at 413, 837 N.Y.S.2d 729;  Cochrane v. Warwick Assoc., 282 A.D.2d 567, 568, 723 N.Y.S.2d 506;  Pavlovich v. Wade Assoc., 274 A.D.2d 382, 383, 710 N.Y.S.2d 615;  Riekers v. Gold Coast Plaza, 255 A.D.2d 373, 374, 679 N.Y.S.2d 709).   Polito also demonstrated that the injured plaintiff did not detrimentally rely on the continued performance of Polito's contractual duties (see Castro v. Maple Run Condominium Assn., 41 A.D.3d at 413, 837 N.Y.S.2d 729;  Pavlovich v. Wade Assoc., 274 A.D.2d at 383, 710 N.Y.S.2d 615;  Riekers v. Gold Coast Plaza, 255 A.D.2d at 374, 679 N.Y.S.2d 709).   Finally, Polito established that he did not launch a force or instrument of harm and thus create or exacerbate a hazardous condition (see Castro v. Maple Run Condominium Assn., 41 A.D.3d at 413, 837 N.Y.S.2d 729;   Pavlovich v. Wade Assoc., 274 A.D.2d at 383, 710 N.Y.S.2d 615;  Riekers v. Gold Coast Plaza, 255 A.D.2d at 374, 679 N.Y.S.2d 709).   Since, in opposition, the plaintiffs failed to raise a triable issue of fact, the Supreme Court correctly granted Polito's motion for summary judgment (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

 However, the Supreme Court should not have entertained Herrill's separate motion for summary judgment, which was untimely.   Herrill failed to demonstrate good cause for its delay in making the motion (see CPLR 3212 [a];  Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431;  DiBenedetto v. Lowe's Home Ctrs., Inc., 43 A.D.3d 853, 841 N.Y.S.2d 683).   Contrary to Herrill's contention, the issues raised on its motion were not nearly identical to the issues raised on Polito's motion (see Grande v. Peteroy, 39 A.D.3d 590, 591-592, 833 N.Y.S.2d 615;  Bressingham v. Jamaica Hosp. Med. Ctr., 17 A.D.3d 496, 496-497, 793 N.Y.S.2d 176).