CAPESTANY v. Bedrock Blacktop, Corp., respondent. (2005)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Klein, J.), dated November 10, 2003, as granted that branch of the motion of the defendant Bedrock Blacktop, Corp. which was for summary judgment dismissing the complaint insofar as asserted against it.

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

The Supreme Court properly granted that branch of the motion of the defendant Bedrock Blacktop, Corp. (hereinafter Bedrock) which was for summary judgment dismissing the complaint insofar as asserted against it.   Bedrock “assumed no duty to exercise reasonable care to prevent foreseeable harm to the [injured] plaintiff by virtue of its contractual duty to remove snow from the subject premises” (DeCurtis v. T.H. Assocs., 241 A.D.2d 536, 537, 661 N.Y.S.2d 642;  see Pavlovich v. Wade Assocs., 274 A.D.2d 382, 382-383, 710 N.Y.S.2d 615).   The contract between Bedrock and the owner of the parking lot where the accident allegedly occurred was not a comprehensive and exclusive contract intended to displace the owner's duty to safely maintain the property (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 141, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Pavlovich v. Wade Assocs., supra at 383, 710 N.Y.S.2d 615).   Furthermore, contrary to the plaintiffs' assertion, there is no evidence that Bedrock “launched a force or instrument of harm” (Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896;  see Espinal v. Melville Snow Contrs., supra at 141-142, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Pavlovich v. Wade Assocs. Inc., supra;  Riekers v. Gold Coast Plaza, 255 A.D.2d 373, 374, 679 N.Y.S.2d 709;  Phillips v. Young Men's Christian Assn., 215 A.D.2d 825, 826, 625 N.Y.S.2d 752).