| Wheaton v East End Commons Assoc., LLC |
| 2008 NY Slip Op 02997 [50 AD3d 675] |
| April 1, 2008 |
| Appellate Division, Second Department |
| Sherrylee S. Wheaton et al.,Respondents-Appellants, v East End Commons Associates, LLC, Also Known as FeilOrganization, et al., Respondents-Appellants, and Kings Park Contracting, Inc.,Appellant-Respondent. |
—[*1] Weisfuse & Weisfuse, LLP, New York, N.Y. (Martin H. Weisfuse of counsel), forplaintiffs-respondents-appellants. Carroll, McNulty & Kull, LLC, New York, N.Y. (Michael R. Schneider of counsel), fordefendants-respondents-appellants.
In an action to recover damages for personal injuries, etc., the defendant Kings ParkContracting, Inc., appeals from so much of an order of the Supreme Court, Suffolk County (R.Doyle, J.), dated September 5, 2006, as denied that branch of its motion which was for summaryjudgment dismissing the cross claim for common-law indemnification insofar as asserted by thedefendant East End Commons Associates, LLC, also known as the Feil Organization, theplaintiffs cross-appeal, as limited by their brief, from so much of the same order as granted thatbranch of the motion of the defendant Kings Park Contracting, Inc., which was for summaryjudgment dismissing the complaint insofar as asserted against it and granted that branch of thecross motion of the defendants East End Commons Associates, LLC, also known as the FeilOrganization, Broadwall Management Corp., and BJ's Wholesale Club, Inc., which was forsummary judgment dismissing the complaint insofar as asserted against the defendantsBroadwall Management Corp. and BJ's Wholesale Club, Inc., and the defendants East EndCommons Associates, LLC, also known as the Feil Organization, Broadwall Management Corp.,and BJ's Wholesale Club, Inc., [*2]separately cross-appeal, aslimited by their brief, from so much of the same order as denied that branch of their cross motionwhich was for summary judgment dismissing the complaint insofar as asserted against thedefendant East End Commons Associates, LLC, also known as the Feil Organization and grantedthat branch of the motion of the defendant Kings Park Contracting, Inc., which was for summaryjudgment dismissing the cross claim for contribution insofar as asserted by the defendant EastEnd Commons Associates LLC, also known as the Feil Organization.
Ordered that the cross appeals by the defendants Broadwall Management Corp. and BJ'sWholesale Club, Inc., are dismissed, without costs or disbursements, as those defendants are notaggrieved by those portions of the order cross-appealed from (see CPLR 5511); and it isfurther,
Ordered that the order is affirmed insofar as appealed from by the defendant Kings ParkContracting, Inc., and cross-appealed from by the plaintiff and the defendant East End CommonsAssociates, LLC, also known as the Feil Organization, without costs or disbursements.
Contrary to the plaintiffs' contention, the complaint was properly dismissed insofar asasserted against the defendants Broadwall Management Corp. (hereinafter Broadwall) and BJ'sWholesale Club, Inc. (hereinafter BJ's). Broadwall demonstrated, prima facie, that it was not themanaging agent for the defendant East End Commons Associates, LLC, also known as the FeilOrganization (hereinafter East End). BJ's demonstrated, prima facie, that it did not own, occupy,or control the parking lot, or put the parking lot to a special use, nor did it have any obligation tomaintain that area (see Kaufman v Silver, 90 NY2d 204, 207 [1997]; Morgan v Chong Kwan Jun, 30 AD3d386, 388 [2006]; DePompo v Waldbaums Supermarket, 291 AD2d 528 [2002]). Inopposition, the plaintiffs failed to raise a triable issue of fact with respect to the liability of eitherof those defendants.
On its cross motion for summary judgment, East End bore the initial burden of establishingits prima facie entitlement to judgment as a matter of law by affirmatively demonstrating themerit of its defense, rather than by pointing to gaps in the plaintiffs' evidence (see Mondello v DiStefano, 16 AD3d637, 638 [2005]). East End failed to meet this burden, since it submitted no evidenceshowing that the allegedly dangerous condition existed for an insufficient length of time for it tohave discovered and remedied it (seePearson v Parkside Ltd. Liab. Co., 27 AD3d 539 [2006]; Amidon v Yankee Trails, Inc.,17 AD3d835 [2005]; Strange v ColgateDesign Corp., 6 AD3d 422 [2004]; McCombs v Related Mgt. Co., 290 AD2d681 [2002]). As a result, the burden did not shift to the plaintiffs to raise a triable issue of factwith respect to East End's constructive notice of the allegedly dangerous condition (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]), and the Supreme Court properlydenied that branch of the cross motion which was for summary judgment dismissing thecomplaint insofar as asserted against East End.
The Supreme Court also correctly determined that the defendant Kings Park Contracting, Inc.(hereinafter Kings Park), established its prima facie entitlement to summary judgment dismissingthe complaint insofar as asserted against it. A limited contractual undertaking to provide snowremoval services generally does not render the contractor liable in tort for the personal injuries ofthird parties (see Espinal v Melville Snow Contrs., 98 NY2d 136, 141-142 [2002];Baratta v Home Depot USA, 303 AD2d 434, 435-436 [2003]). In opposition, theplaintiffs failed to raise a triable issue of fact as to the injured plaintiff's alleged detrimentalreliance on Kings Park's continued performance of its contractual obligations, since the injuredplaintiff testified at her deposition that she had no knowledge of the snow removal contract(see Espinal v Melville Snow Contrs., 98 NY2d at 142; Eaves Brooks Costume Co. vY.B.H. Realty Corp., 76 NY2d 220 [1990]; Gor v High View Estates Owners [*3]Corp.,17 AD3d 316, 317 [2005]; Bugiada v Iko, 274 AD2d 368, 369 [2000]), nor didthe plaintiffs present any evidence that Kings Park launched a force or instrument of harm whichcreated or exacerbated the allegedly hazardous condition (see Castro v Maple Run Condominium Assn., 41 AD3d 412,413-414 [2007]; Zabbia v Westwood,LLC, 18 AD3d 542, 544 [2005]; cf. Keese v Imperial Gardens Assoc., LLC, 36 AD3d 666 [2007]).
Kings Park also established its prima facie entitlement to summary judgment dismissing thecross claim for contribution insofar as asserted by East End. In opposition, East End failed toraise a triable issue of fact as to whether Kings Park owed it a duty of reasonable careindependent of Kings Park's contractual obligations (see Roach v AVR Realty Co., LLC, 41 AD3d 821, 824 [2007];Baratta v Home Depot USA, 303 AD2d at 435; Phillips v Young Men's ChristianAssn., 215 AD2d 825, 827 [1995]). As a result, the Supreme Court properly granted thatbranch of Kings Park's motion which was for summary judgment dismissing the cross claim forcontribution insofar as asserted by East End.
The Supreme Court correctly denied that branch of Kings Park's motion which was forsummary judgment dismissing the cross claim for common-law indemnification insofar asasserted by East End. Kings Park failed to establish its entitlement to judgment as a matter of lawdismissing this cross claim. "[S]ince there are questions of fact as to whether the accidentresulted from [Kings Park's] alleged failure to fulfill its obligations pursuant to the terms of thesnow removal contract" (Richter vHunter's Run Homeowners Assn., Inc., 14 AD3d 601, 602 [2005]; see Mitchell vFiorini Landscape, 284 AD2d 313, 314 [2001]), the cross claim for common-lawindemnification cannot be resolved as a matter of law (see Vilorio v Suffolk Y Jewish Community Ctr., Inc., 33 AD3d696, 697 [2006]; Baratta v Home Depot USA, 303 AD2d at 435). Spolzino, J.P.,Santucci, Angiolillo and Balkin, JJ., concur.