BODDIE v. NEW PLAN REALTY TRUST

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

Dorothy BODDIE, et al., Appellants, v. NEW PLAN REALTY TRUST, et al., Respondents.

Decided: April 21, 2003

SANDRA J. FEUERSTEIN, J.P., NANCY E. SMITH, HOWARD MILLER and SANDRA L. TOWNES, JJ. Thornton, Bergstein & Ullrich, LLP, Chester, NY, (Stephen Bergstein of counsel), for appellants. McCabe & Mack, LLP, Poughkeepsie, NY, (Christina M. Bookless of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated July 10, 2002, which granted the motion of the defendant New Plan Realty Trust for summary judgment dismissing the complaint insofar as asserted against it, and (2) an order of the same court, also dated July 10, 2002, which granted the motion of the defendant Thompson Ridge Nursery, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the orders are affirmed, with one bill of costs.

The plaintiff Dorothy Boddie allegedly was injured when she slipped and fell on a patch of ice on property owned by the defendant New Plan Realty Trust (hereinafter New Plan).   New Plan had a maintenance contract with the defendant Thompson Ridge Nursery, Inc. (hereinafter Thompson Ridge), pursuant to which Thompson Ridge performed snow and ice removal services on the subject property.

 New Plan made a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   In opposition, the plaintiffs claimed that New Plan had constructive notice of the allegedly hazardous condition.   However, the plaintiffs failed to raise a triable issue of fact with respect to that point.   In particular, the injured plaintiff testified that she did not see the patch of ice before her fall, and failed to demonstrate that it existed for a sufficient length of time to charge New Plan with constructive notice thereof (see Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, 622 N.Y.S.2d 496, 646 N.E.2d 798;  Javurek v. Gardiner, 287 A.D.2d 544, 731 N.Y.S.2d 475;  Alexander v. City of New York, 277 A.D.2d 334, 716 N.Y.S.2d 103).

 Thompson Ridge also established its prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., supra at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   In response, the plaintiffs failed to raise a triable issue of fact.   A limited contractual undertaking to provide snow removal services generally does not render the contractor liable in tort for the personal injuries of third parties (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Javurek v. Gardiner, supra).   Further, there is no evidence that the injured plaintiff detrimentally relied on Thompson Ridge's performance, or that the actions of Thompson Ridge “launched a force or instrument of harm” (Espinal v. Melville Snow Contrs., supra at 139, 746 N.Y.S.2d 120, 773 N.E.2d 485, quoting H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896;  Baratta v. Home Depot USA, 303 A.D.2d 434, 756 N.Y.S.2d 605;  Eidlisz v. Village of Kiryas Joel, 302 A.D.2d 558, 755 N.Y.S.2d 422).

The plaintiffs' remaining contentions are without merit.

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