RAK 14 v. Gernatt Asphalt Products, Inc., Defendant-Appellant.

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Supreme Court, Appellate Division, Fourth Department, New York.

Carolyn RAK, Individually and as Parent and Natural Guardian of T.H., an Infant Under the Age of 14 Years, Plaintiff-Respondent, v. COUNTRY FAIR, INC., Prime Realty, Inc., Prime Realty II, Inc., Defendants-Respondents, Gernatt Asphalt Products, Inc., Defendant-Appellant.

Decided: March 16, 2007

PRESENT:  SCUDDER, P.J., MARTOCHE, SMITH, PERADOTTO, AND PINE, JJ. Petrone & Petrone, P.C., Buffalo (James H. Cosgriff, III, of Counsel), for Defendant-Appellant. Farrell & Farrell, Hamburg (Kenneth J. Farrell of Counsel), for Plaintiff-Respondent. Damon & Morey LLP, Buffalo (Amy Archer Flaherty of Counsel), for Defendants-Respondents.

Plaintiff slipped and fell on the sidewalk of premises owned by defendants Country Fair, Inc., Prime Realty, Inc. and Prime Realty II, Inc. (collectively, Country Fair), and she commenced this action, individually and on behalf of her infant son, to recover damages for her own injuries resulting from that fall as well as those resulting from the premature birth of her son.   Country Fair had contracted with Gernatt Asphalt Products, Inc. (defendant) to plow snow from the parking lot of the premises and, following discovery, defendant moved for summary judgment dismissing the “supplemental” complaint and cross claims against it.   We conclude that Supreme Court properly denied defendant's motion.

Although “a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” (Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485;  see Church v. Callanan Indus., 99 N.Y.2d 104, 111, 752 N.Y.S.2d 254, 782 N.E.2d 50;  Cooper v. Time Warner Entertainment-Advance/Newhouse Partnership, 16 A.D.3d 1037, 791 N.Y.S.2d 795), one exception to that general rule is “where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, ‘launche[s] a force or instrument of harm’ ” (Espinal, 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485;  see Anderson v. Jefferson-Utica Group, Inc., 26 A.D.3d 760, 760-761, 809 N.Y.S.2d 693).   Here, defendant failed to meet its burden on the motion because it failed to establish as a matter of law that it “did not perform any snow removal operations with respect to the condition that caused ․ plaintiff's injury [or those of plaintiff's son], or, alternatively, that if [it] did perform such operations, those efforts did not create or exacerbate a dangerous condition” (Prenderville v. International Serv. Sys., Inc., 10 A.D.3d 334, 337, 781 N.Y.S.2d 110).   Indeed, by submitting evidence that defendant's snowplow operator plowed snow onto the sidewalk where plaintiff fell, defendant submitted evidence that its snowplow operator “create[d] an unreasonable risk of harm to others, or increase[d] that risk” (Church, 99 N.Y.2d at 111, 752 N.Y.S.2d 254, 782 N.E.2d 50;  see e.g. Reznicki v. Strathallan Hotel, Inc., 12 A.D.3d 156, 157, 786 N.Y.S.2d 139;  Dappio v. Port Auth. of N.Y. & N.J., 299 A.D.2d 310, 311-312, 749 N.Y.S.2d 150).   Thus, because defendant failed to meet its initial burden, the burden never shifted to plaintiff to raise a triable issue of fact (see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: