PETERS v. UNITED REFINING COMPANY OF PENNSYLVANIA

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

Darwin L. PETERS, Jr., et al., Plaintiffs, v. UNITED REFINING COMPANY OF PENNSYLVANIA, et al., Defendants.

United Refining Company of Pennsylvania, United Refining Company, Country Fair, Inc., and Prime Realty II, Inc., Third-Party Plaintiffs-Respondents, v. Gordon B. Scott, Doing Business as Scott's Lawn & Landscaping Services, Third-Party Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  MARTOCHE, J.P., SMITH, CENTRA, GREEN, and PINE, JJ. Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (Thomas P. Cunningham of Counsel), for Third-Party Defendant-Appellant. Wright, Wright and Hampton, Jamestown (Edward P. Wright of Counsel), for Third-Party Plaintiffs-Respondents.

Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Darwin L. Peters, Jr. when he slipped and fell on ice in a parking lot allegedly owned by defendants-third-party plaintiffs (defendants).   Supreme Court erred in denying third-party defendant's motion for summary judgment dismissing the third-party complaint, which sought contribution and indemnification.   According to defendants, third-party defendant negligently created or exacerbated a dangerous condition by piling mounds of snow on the perimeter of the property, which then melted and refroze (see generally Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 141-142, 746 N.Y.S.2d 120, 773 N.E.2d 485).   Contrary to defendants' contention, the snow removal contract required third-party defendant to plow the snow on the property, not to remove the snow.   The provision relied upon by defendants in the contract in support of their contention that third-party defendant was required to remove the snow simply set forth the pricing in the event that third-party defendant was required to clear the snow from the premises by the use of a loader or dump truck.   We conclude that third-party defendant met his burden on the motion by establishing that he plowed snow on the property two days before the accident and was not requested in accordance with the contract to apply sand or salt either on that day or on the day of the accident, and defendants failed to raise an issue of fact to defeat the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).  “[B]y merely plowing the snow, as required by the contract, [third-party] defendant's actions could not be said ‘to have created or exacerbated a dangerous condition’ ” (Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 361, 850 N.Y.S.2d 359, 880 N.E.2d 845, quoting Espinal, 98 N.Y.2d at 142, 746 N.Y.S.2d 120, 773 N.E.2d 485).

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted and the third-party complaint is dismissed.

MEMORANDUM: