Mastroddi v WDG Dutchess Assoc. Ltd. Partnership

2008 NY Slip Op 05543

Decided on June 17, 2008

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 17, 2008
Lippman, P.J., Andrias, Sweeny, Renwick, JJ.
3946 102790/05






Smith Mazure Director Wilkins Young & Yagerman, P.C.,
New York (Michael I. Josephs of counsel), for appellant.
Worby Groner Edelman, LLP, White Plains (Michael L. Taub of
counsel), for respondent.

Order, Supreme Court, New York County (Marcy Friedman, J.), entered August 16, 2007, which denied the motion of defendant North Atlantic Industrial Maintenance, Inc. for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

North Atlantic, a snow removal contractor, contends that it owed plaintiff no duty of care because none of the three situations in which a contractual obligation may give rise to tort liability to third persons obtains here (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). However, North Atlantic failed to eliminate all triable issues of fact with respect to any of these situations. It failed to produce the snow removal contract with the premises owner in support of the argument that its contractual obligation did not displace the owner's duty to safely maintain the premises (see id. at 140-141 [2002]; Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643-644 [1994]; Colbourn v ISS Intl. Serv. Sys., 304 AD2d 369 [2003]), and it failed to establish that plaintiff did not detrimentally rely on the continued performance of its snow removal duties (see Espinal at 140). In addition, given defendant's silence with respect to the actual snow removal operations and the condition of the parking lot on the relevant date, defendant failed to meet its burden of whether it created or exacerbated a hazard (see Prendeville v International Service Systems, Inc., 10 AD3d 334 [2004]).

Accordingly, since North Atlantic failed to meet its burden on the motion for summary judgment, such motion was properly denied by the Supreme Court regardless of the sufficiency [*2]of plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Raynor-Brown v Garden City Plaza Assoc., 305 AD2d 572, 573-574 [2nd Dept 2003]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 17, 2008

CLERK