EIDLISZ v. VILLAGE OF KIRYAS JOEL

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

Ervin EIDLISZ, et al., Appellants, v. VILLAGE OF KIRYAS JOEL, et al., Respondents.

Decided: February 24, 2003

ANITA R. FLORIO, J.P. STEPHEN G. CRANE BARRY A. COZIER and REINALDO E. RIVERA, JJ. Richard Frank, P.C., Garden City, NY, (William P. Walzer of counsel), for appellants. Barry, McTiernan & Moore, New York, NY, (Anthony J. McNulty of counsel), for respondent Village of Kiryas Joel. Robert P. Augello, Middletown, NY, for respondent Howell's Lawn Service, Inc.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (McGuirk, J.), dated March 28, 2002, as granted those branches of the respective motions of the defendant Howell's Lawn Service, Inc., and the defendant Village of Kiryas Joel, which were for summary judgment dismissing the complaint insofar as asserted against them.

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

The injured plaintiff slipped and fell on a snow- and ice-covered sidewalk in the defendant Village of Kiryas Joel. The defendant Howell's Lawn Service, Inc. (hereinafter Howell's), performed snow removal operations upon the express request of the Village pursuant to a contract.

 The Supreme Court properly granted Howell's motion for summary judgment dismissing the complaint insofar as asserted against it.   Howell's owed no duty to the injured plaintiff since the snow removal contract was not a comprehensive and exclusive property maintenance obligation intended to displace the Village's duty, as landowner, to safely maintain the premises (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Grau v. Taxter Park Assocs., 283 A.D.2d 551, 724 N.Y.S.2d 497;  Pavlovich v. Wade Assocs., 274 A.D.2d 382, 710 N.Y.S.2d 615).   In addition, the plaintiffs failed to establish that Howell's snow-removal activities created or exacerbated a hazardous condition (see Espinal v. Melville Snow Contrs., supra at 142, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Grau v. Taxter Park Assocs., supra at 552, 724 N.Y.S.2d 497).

 Further, the grant of summary judgment to the Village was proper since the Village established that it had no prior written notice of the snow and ice condition, and the plaintiffs failed to provide any evidence to the contrary (see CPLR 9804;  Village Law § 6-628;  Alvino v. County of Nassau, 204 A.D.2d 583, 584, 613 N.Y.S.2d 23).

The plaintiffs' remaining contentions are not properly before this court, as they were never raised before the Supreme Court (see Mann v. All Waste Sys., 293 A.D.2d 656, 741 N.Y.S.2d 272, lv. denied 98 N.Y.2d 610, 749 N.Y.S.2d 2, 778 N.E.2d 553;  First Nationwide Bank v. Goodman, 272 A.D.2d 433, 434, 707 N.Y.S.2d 669).

In light of our determination, Howell's remaining contention has been rendered academic.

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