KNOX v. Termicide, Ltd., respondent.

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

Ernest KNOX, appellant, v. SODEXHO AMERICA, LLC, et al., defendants, Termicide, Ltd., respondent.

Decided: March 06, 2012

REINALDO E. RIVERA, J.P., RANDALL T. ENG, L. PRISCILLA HALL and SANDRA L. SGROI, JJ. Jaroslawicz & Jaros LLC, New York, N.Y. (David Tolchin and Norman Frowley of counsel), for appellant. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Louise M. Cherkis of counsel), for respondent. Wade Clark Mulcahy, New York, N.Y. (David F. Tavella of counsel), for defendants.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated March 5, 2010, as granted that branch of the motion of the defendant Termicide, Ltd., which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiff to the defendant Termicide, Ltd.

 As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties (see Lubell v. Stonegate at Ardsley Home Owners Assn., Inc., 79 A.D.3d 1102, 1103, 915 N.Y.S.2d 103;  Wheaton v. East End Commons Assoc., LLC, 50 A.D.3d 675, 677, 854 N.Y.S.2d 528).   However, in Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485, the Court of Appeals recognized that exceptions to this rule apply:  (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, and (3) where the contracting party has entirely displaced another party's duty to maintain the premises safely.

 Contrary to the plaintiff's contention, the defendant Termicide, Ltd. (hereinafter Termicide), made a prima facie showing of its entitlement to judgment as a matter of law by offering proof that the plaintiff was not a party to its snow removal contract, and that it, thus, owed him no duty of care (see Henriquez v. Inserra Supermarkets, Inc., 89 A.D.3d 899, 901, 933 N.Y.S.2d 304;  Lubell v. Stonegate at Ardsley Home Owners Assn., Inc., 79 A.D.3d at 1103, 915 N.Y.S.2d 103;  Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226).   Since the plaintiff did not allege facts in his complaint or bill of particulars which would establish the possible applicability of any of the Espinal exceptions, Termicide, in establishing its prima facie entitlement to judgment as a matter of law, was not required to affirmatively demonstrate that these exceptions did not apply (see Henriquez v. Inserra Supermarkets, Inc., 89 A.D.3d at 901, 933 N.Y.S.2d 304;  Foster v. Herbert Slepoy Corp., 76 A.D.3d at 214, 905 N.Y.S.2d 226).   In opposition to Termicide's prima facie showing, the plaintiff offered no evidence to support his contention that Termicide launched a force or instrument of harm by creating or exacerbating the icy condition that allegedly caused him to fall (see Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 361, 850 N.Y.S.2d 359, 880 N.E.2d 845;  Henriquez v. Inserra Supermarkets, Inc., 89 A.D.3d at 902, 933 N.Y.S.2d 304;  Quintanilla v. John Mauro's Lawn Serv., Inc., 79 A.D.3d 838, 839, 912 N.Y.S.2d 415;  Foster v. Herbert Slepoy Corp., 76 A.D.3d at 215, 905 N.Y.S.2d 226;  Castro v. Maple Run Condominium Assn., 41 A.D.3d 412, 413–414, 837 N.Y.S.2d 729).

Accordingly, the Supreme Court properly granted that branch of Termicide's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

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