| Hutchinson v Medical Data Resources, Inc. |
| 2008 NY Slip Op 06592 [54 AD3d 362] |
| August 12, 2008 |
| Appellate Division, Second Department |
| Joann M. Hutchinson et al., Respondents, v Medical DataResources, Inc., Respondent, and Lake Associates et al., Appellants. |
—[*1] Tonetti & Ambrosino (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D.Sweetbaum], of counsel), for appellant Doug's Landscaping, Inc. Rosa M. Feeney, Hauppauge, N.Y. (Nancy D. Kreiker of counsel), forplaintiffs-respondents.
In an action to recover damages for personal injuries, etc., the defendants Lake Associatesand Lake Industries appeal, and the defendant Doug's Landscaping, Inc., separately appeals, fromso much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated March 5,2007, as denied their respective motions for summary judgment dismissing the complaint and allcross claims insofar as asserted against them.
Ordered that the order is modified, on the law, by deleting the provision thereof denying themotion of the defendant Doug's Landscaping, Inc., for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it, and substituting therefor a provisiongranting that motion; as so modified, the order is affirmed, with one bill of costs payable to thedefendant Doug's Landscaping, Inc., by the plaintiffs, and one bill of costs payable to theplaintiffs by the defendants Lake Associates and Lake Industries.
"An owner of real property, or a party in possession or control thereof, may be liable for ahazardous snow or ice condition existing on the property as a result of the natural accumulationof snow or ice only upon a showing that it had actual or constructive notice of the hazardouscondition and that a sufficient period of time elapsed since the cessation of the precipitation topermit the party [*2]to remedy the condition" (Lee-Pack v 1 Beach 105 Assoc., LLC,29 AD3d 644, 644 [2006]). Moreover, "a property owner who has actual knowledge ofan ongoing and recurring dangerous condition can be charged with constructive notice of eachspecific reoccurrence of that condition" (Anderson v Central Val. Realty Co., 300 AD2d422, 422 [2002]). The defendants Lake Associates and Lake Industries (hereinafter collectivelyLake) failed to demonstrate their prima facie entitlement to judgment as a matter of law bypresenting evidence that they lacked constructive notice of the recurring icy condition where theplaintiff Joann M. Hutchinson (hereinafter Hutchinson) fell (see Sewitch v LaFrese, 41 AD3d 695, 696 [2007]; Erikson v J.I.B. Realty Corp., 12 AD3d344, 345 [2004]; see generally Zuckerman v City of New York, 49 NY2d 557[1980]). Since Lake did not meet their burden, there is no need to address the sufficiency of theplaintiffs' submissions in opposition to their motion (see Carthans v Grenadier Realty Corp., 38 AD3d 489 [2007]).
However, the defendant Doug's Landscaping, Inc. (hereinafter Doug's Landscaping),established a prima facie case warranting summary judgment dismissing the complaint and allcross claims insofar as asserted against it, and the plaintiffs failed to raise a triable issue of fact inopposition (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]). Doug'sLandscaping did not assume a duty to exercise reasonable care to prevent foreseeable harm toHutchinson by virtue of its snow removal contract with Lake, which owned the property whereHutchinson fell (see Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]). Thislimited contractual undertaking was not a comprehensive and exclusive property maintenanceobligation intended to displace Lake's duty as a landowner to safely maintain the property (see Nobles v Procut Lawns Landscaping &Contr., Inc., 7 AD3d 768, 769 [2004]). In addition, there is no evidence that Hutchinsondetrimentally relied on the performance of Doug's Landscaping or that the actions of Doug'sLandscaping had advanced to such a point as to have launched a force or instrument of harm(see Pavlovich v Wade Assoc., 274 AD2d 382, 383 [2000]). The Supreme Court thuserred in denying the motion of Doug's Landscaping. Florio, J.P., Angiolillo, McCarthy andDickerson, JJ., concur.