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

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated February 13, 2007, as granted the motion of the defendant DeBenedittis Landscaping, Inc., for summary judgment dismissing the complaint insofar as asserted against it, granted that branch of the cross motion of the defendant Laro Maintenance Corporation which was for summary judgment dismissing the complaint insofar as asserted against it, and granted the separate motion of the defendant Parkview Landscaping Co. pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it as time-barred.

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

 The Supreme Court correctly granted the motion of the defendant DeBenedittis Landscaping, Inc. (hereinafter DeBenedittis), for summary judgment dismissing the complaint insofar as asserted against it and correctly granted that branch of the cross motion of the defendant Laro Maintenance Corp. (hereinafter Laro) which was for summary judgment dismissing the complaint insofar as asserted against it.   A contractor or subcontractor's limited contractual undertaking to provide snow removal services generally does not give rise to a duty of care to persons not a party to the contract, absent evidence that the contractor or subcontractor assumed a comprehensive maintenance obligation, created or exacerbated a dangerous condition or launched a force or instrument of harm, or that the plaintiff detrimentally relied on the contractor's continued performance of its obligation (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Wheaton v. East End Commons Assoc., LLC, 50 A.D.3d 675, 677, 854 N.Y.S.2d 528;  Baratta v. Home Depot USA, 303 A.D.2d 434, 434-435, 756 N.Y.S.2d 605).   Here, the defendants Laro and DeBenedittis established, prima facie, that they did not assume a comprehensive and exclusive maintenance obligation at the premises.   The contract between the property owner and Laro expressly provided that it was nonexclusive and that the owner's on-site property manager was to oversee various aspects of snow-removal operations and other maintenance work.   In opposition, the plaintiff failed to raise a triable issue of fact demonstrating that Laro or DeBenedittis assumed a comprehensive maintenance obligation giving rise to a duty of care to third parties (see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 141, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Linarello v. Colin Serv. Sys., Inc., 31 A.D.3d 396, 397, 817 N.Y.S.2d 660;  Mahaney v. Neuroscience Ctr., 28 A.D.3d 432, 433, 814 N.Y.S.2d 175;  Parker v. Rust Plant Servs., Inc., 9 A.D.3d 671, 673-674, 780 N.Y.S.2d 230;  Torella v. Benderson Dev. Co., 307 A.D.2d 727, 728, 763 N.Y.S.2d 876).

 Laro and DeBenedittis also made a prima facie showing that they did not create or exacerbate a dangerous condition or launch a force or instrumentality of harm, and the plaintiff failed to raise a triable issue of fact in opposition to that showing.   There was no evidence that these defendants performed snow-removal work in the area where the plaintiff fell (see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 139, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Castro v. Maple Run Condominium Assn., 41 A.D.3d 412, 413-414, 837 N.Y.S.2d 729;  Mahaney v. Neuroscience Ctr., 28 A.D.3d at 434, 814 N.Y.S.2d 175;  Katz v. Pathmark Stores, Inc., 19 A.D.3d 371, 372, 796 N.Y.S.2d 176;  Maldonado v. Novartis Pharms. Corp., 18 A.D.3d 720, 721, 795 N.Y.S.2d 759;  Zabbia v. Westwood, LLC, 18 A.D.3d 542, 544, 795 N.Y.S.2d 319;  Gaitan v. Regional Maintenance Corp., 6 A.D.3d 495, 496, 774 N.Y.S.2d 416).

The plaintiff's remaining contentions are without merit.