GRAU v. TAXTER PARK ASSOCIATES

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

Joan GRAU, Appellant, v. TAXTER PARK ASSOCIATES, et al., Respondents.

Decided: May 21, 2001

MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO and HOWARD MILLER, JJ. Louis J. Lamatina, New York, N.Y., for appellant. Michael F. Harris (Carol R. Finocchio, New York, N.Y., of counsel), for respondent Taxter Park Associates. Ohrenstein & Brown, LLP, New York, N.Y. (Jonathan A. Judd of counsel), for respondent New Rochelle Contracting Corporation.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered February 3, 2000, which granted the respective motions of the defendants Taxter Park Associates and New Rochelle Contracting Corporation for summary judgment dismissing the complaint insofar as asserted against them, and denied her cross motion for partial summary judgment on the issue of liability against the defendant New Rochelle Contracting Corporation.

ORDERED that the order is affirmed, with one bill of costs.

The plaintiff slipped and fell on a patch of ice on a curb abutting premises owned by the defendant Taxter Park Associates (hereinafter Taxter Park).   She commenced this action against Taxter Park and New Rochelle Contracting Corporation (hereinafter NRC), which, pursuant to a written contract, performed snow removal services at the premises.   At the time of the plaintiff's accident, a storm was in progress, and NRC had sanded the premises some two hours earlier.   The Supreme Court granted the defendants' respective motions for summary judgment and denied the plaintiff's cross motion for partial summary judgment on the issue of liability against NRC. We affirm.

 There is no duty to remove snow and ice while a storm is in progress.   Liability for the failure to remove accumulated snow and ice can attach only a reasonable time after the storm has ended (see, Tillman v. DeBenedictis & Sons Bldg. Corp., 237 A.D.2d 593, 655 N.Y.S.2d 1022).   Snow or ice removal actions undertaken during a storm may be actionable if performed negligently, i.e., they either create a hazardous condition or exacerbate the naturally hazardous condition created by the storm (see, Marrone v. Verona, 237 A.D.2d 805, 654 N.Y.S.2d 481).   Here, the record is devoid of evidence indicating that a hazardous condition was either created or exacerbated by NRC's efforts and therefore neither Taxter Park, as the property owner, nor NRC, as a snow removal contractor, can be held liable under this theory.

 In any event, because the contract between NRC and Taxter Park was not a “comprehensive and exclusive property maintenance obligation”, but rather a routine snow removal contract, NRC did not owe a duty of care to the plaintiff (Bugiada v. Iko, 274 A.D.2d 368, 710 N.Y.S.2d 117;  see, Pavlovich v. Wade Assocs., 274 A.D.2d 382, 710 N.Y.S.2d 615).

In view of the foregoing, we need not reach the parties' remaining contentions.

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