REISERT v. O & M Maintenance of Long Island, Inc., Appellant. (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant O & M Maintenance of Long Island, Inc., appeals from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated October 5, 2017.  The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant O & M Maintenance of Long Island, Inc., for summary judgment dismissing the complaint insofar as asserted against it is granted.

On February 8, 2014, the plaintiff Cynthia M. Reisert (hereinafter the injured plaintiff) allegedly slipped and fell on snow and ice in the parking lot of her employer in Suffolk County.  The injured plaintiff, and her husband suing derivatively, commenced this action against the defendant O & M Maintenance of Long Island, Inc. (hereinafter O & M), and another defendant.  At the time of the accident, O & M had been retained by the injured plaintiff's employer to plow the parking lot where the accident occurred.  O & M moved for summary judgment dismissing the complaint insofar as asserted against it, contending that it owed no duty of care to the injured plaintiff.  The Supreme Court denied the motion, and O & M appeals.

“As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties” (Rudloff v. Woodland Pond Condominium Assn., 109 A.D.3d 810, 810, 971 N.Y.S.2d 170;  see Diaz v. Port Auth. of NY & NJ, 120 A.D.3d 611, 990 N.Y.S.2d 882;  Lubell v. Stonegate at Ardsley Home Owners Assn., Inc., 79 A.D.3d 1102, 1103, 915 N.Y.S.2d 103).  However, the Court of Appeals has recognized three exceptions to the general rule:  “(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm;  (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely” (Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [internal quotation marks and citations omitted] ).

Here, O & M made a prima facie showing of its entitlement to judgment as a matter of law by submitting evidence that the injured plaintiff was not a party to its snow removal contract and, thus, O & M owed her no duty of care (see Koslosky v. Ross–Malmut, 149 A.D.3d 925, 926, 52 N.Y.S.3d 400;  Leibovici v. Imperial Parking Mgt. Corp., 139 A.D.3d 909, 910, 33 N.Y.S.3d 312;  Bryan v. CLK–HP 225 Rabro, LLC, 136 A.D.3d 955, 956, 26 N.Y.S.3d 207;  Ankin v. Spitz, 129 A.D.3d 1001, 1003, 12 N.Y.S.3d 250;  Javid v. Sclafmore Constr., 117 A.D.3d 907, 907–908, 985 N.Y.S.2d 893;  Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226).  Since the pleadings did not allege facts which would establish the applicability of any of the Espinal exceptions, O & M was not required to affirmatively demonstrate that these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law (see Koslosky v. Ross–Malmut, 149 A.D.3d at 926, 52 N.Y.S.3d 400;  Leibovici v. Imperial Parking Mgt. Corp., 139 A.D.3d at 910, 33 N.Y.S.3d 312;  Bryan v. CLK–HP 225 Rabro, LLC, 136 A.D.3d at 956, 26 N.Y.S.3d 207;  Ankin v. Spitz, 129 A.D.3d at 1003, 12 N.Y.S.3d 250;  Javid v. Sclafmore Constr., 117 A.D.3d at 907–908, 985 N.Y.S.2d 893;  Foster v. Herbert Slepoy Corp., 76 A.D.3d at 214, 905 N.Y.S.2d 226).

In opposition to O & M's prima facie showing, the plaintiffs failed to raise a triable issue of fact as to whether O & M “created or exacerbated a dangerous condition” (Espinal v. Melville Snow Contrs., 98 N.Y.2d at 142, 746 N.Y.S.2d 120, 773 N.E.2d 485).  “A snow removal contractor cannot be held liable for personal injuries ‘on the ground that the snow removal contractor's passive omissions constituted the launch of a force or instrument of harm, where there is no evidence that the passive conduct created or exacerbated a dangerous condition’ ” (Somekh v. Valley Natl. Bank, 151 A.D.3d 783, 786, 57 N.Y.S.3d 487, quoting Santos v. Deanco Servs., Inc., 142 A.D.3d 137, 138, 35 N.Y.S.3d 686;  Rudloff v. Woodland Pond Condominium Assn., 109 A.D.3d at 811, 971 N.Y.S.2d 170).

Accordingly, the Supreme Court should have granted O & M's motion for summary judgment dismissing the complaint insofar as asserted against it.

BALKIN, J.P., SGROI, MALTESE and CHRISTOPHER, JJ., concur.