| Bickelman v Herrill Bowling Corp. |
| 2008 NY Slip Op 02091 [49 AD3d 578] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Wayne J. Bickelman et al., Appellants, v Herrill BowlingCorp., Doing Business as Herrill Lanes, et al., Respondents, et al., Defendant. (And a Third-PartyAction.) |
—[*1] Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein and David D. Hess of counsel),for respondent Herrill Bowling Corp., doing business as Herrill Lanes. Picciano & Scahill, P.C., Westbury, N.Y. (Gilbert J. Hardy III, John F. Picciano, and RobinM. Heaney of counsel), for respondent Frank Polito.
In a consolidated action to recover damages for personal injuries, etc., the plaintiffs appeal(1) from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered December 21,2006, which granted the motion of the defendant Frank Polito for summary judgment dismissingthe complaint insofar as asserted against him, and granted the separate motion of the defendantHerrill Bowling Corp., doing business as Herrill Lanes, for summary judgment dismissing thecomplaint insofar as asserted against it, (2), as limited by their brief, from so much of an order ofthe same court entered June 28, 2007, as, upon reargument, adhered to the original determination,and (3) from a judgment of the same court dated August 22, 2007, which, upon the orders, is infavor of the defendants Herrill Bowling Corp., doing business as Herrill Lanes, and Frank Politoand against them, dismissing the complaint insofar as asserted against them.
Ordered that the appeals from the orders are dismissed; and it is further,[*2]
Ordered that the judgment is modified, on the law, bydeleting the provision thereof dismissing the complaint insofar as asserted against the HerrillBowling Corp., doing business as Herrill Lanes; as so modified, the judgment is affirmed, withone bill of costs payable to the defendant Frank Polito by the plaintiffs and one bill of costspayable to the plaintiffs by the defendant Herrill Bowling Corp., doing business as Herrill Lanes,the motion of the defendant Herrill Bowling Corp., doing business as Herrill Lanes, for summaryjudgment dismissing the complaint insofar as asserted against it is denied, the orders aremodified accordingly, the complaint is reinstated against said defendant, and the action againstthe defendant Herrill Bowling Corp., doing business as Herrill Lanes, and Fred Schumacher, Jr.,is severed.
The appeals from the orders must be dismissed because the right of direct appeal therefromterminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241,248 [1976]). The issues raised on the appeals from the orders are brought up for review and havebeen considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
Generally, a snow removal contractor's contractual obligation, standing alone, will not giverise to tort liability in favor of third parties unless: (1) the snow removal contractor, in failing toexercise reasonable care in the performance of its duties, launched a force or instrument of harm;(2) the plaintiff detrimentally relied on the continued performance of the snow removalcontractor's duties; or (3) the snow removal contract has entirely displaced the landowner's dutyto safely maintain the premises (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140[2002]; Castro v Maple RunCondominium Assn., 41 AD3d 412, 413 [2007]). On his motion for summary judgment,the defendant Frank Polito, who entered into a snow removal contract with the defendant HerrillBowling Corp., doing business as Herrill Lanes (hereinafter Herrill), to plow Herrill's premises,demonstrated his prima facie entitlement to judgment as a matter of law (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). Polito established that the contract was not acomprehensive and exclusive property maintenance obligation intended to displace Herrill's dutyto maintain the premises in a reasonably safe condition (see Castro v Maple RunCondominium Assn., 41 AD3d at 413; Cochrane v Warwick Assoc., 282 AD2d 567,568 [2001]; Pavlovich v Wade Assoc., 274 AD2d 382, 383 [2000]; Riekers v GoldCoast Plaza, 255 AD2d 373, 374 [1998]). Polito also demonstrated that the injured plaintiffdid not detrimentally rely on the continued performance of Polito's contractual duties (seeCastro v Maple Run Condominium Assn., 41 AD3d at 413; Pavlovich v WadeAssoc., 274 AD2d at 383; Riekers v Gold Coast Plaza, 255 AD2d at 374). Finally,Polito established that he did not launch a force or instrument of harm and thus create orexacerbate a hazardous condition (see Castro v Maple Run Condominium Assn., 41AD3d at 413; Pavlovich v Wade Assoc., 274 AD2d at 383; Riekers v Gold CoastPlaza, 255 AD2d at 374). Since, in opposition, the plaintiffs failed to raise a triable issue offact, the Supreme Court correctly granted Polito's motion for summary judgment (see Alvarezv Prospect Hosp., 68 NY2d at 324).
However, the Supreme Court should not have entertained Herrill's separate motion forsummary judgment, which was untimely. Herrill failed to demonstrate good cause for its delay inmaking the motion (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652 [2004]; DiBenedetto v Lowe's Home Ctrs.,Inc., 43 AD3d 853 [2007]). Contrary to Herrill's contention, the issues raised on itsmotion were not nearly identical to the issues raised on Polito's motion (see Grande v Peteroy, 39 AD3d590, 591-592 [2007]; Bressinghamv Jamaica Hosp. Med. Ctr., 17 AD3d 496, 496-497 [2005]). Skelos, J.P., Fisher,Covello and Eng, JJ., concur.