| Elsey v Clark Trading Corp. |
| 2008 NY Slip Op 10240 [57 AD3d 1330] |
| December 31, 2008 |
| Appellate Division, Third Department |
| Dewitt Elsey, Appellant, v Clark Trading Corporation et al.,Respondents. |
—[*1] Carter, Conboy, Casey, Blackmore, Maloney & Laird, P.C., Albany (Adam H. Cooper ofcounsel), for Clark Trading Corporation and others, respondents. Shantz & Belkin, Latham (Todd C. Roberts of counsel), for JRP Enterprises, Inc.,respondent.
Stein, J. Appeal from an order of the Supreme Court (Kramer, J.), entered November 8, 2007 inSchenectady County, which granted defendants' motions for, among other things, summary judgmentdismissing the amended complaint.
Plaintiff alleges that he slipped and fell on a patch of ice in the Price Chopper parking lot located at1640 Eastern Parkway in the City of Schenectady, Schenectady County on February 1, 2004. Hearrived at the store at approximately 11:00 p.m. and parked his car about 40 to 50 feet from the store'sentrance and about 30 feet from a large snow bank. Upon completing his shopping approximately 20minutes later, plaintiff returned to his car and, after loading his groceries into the car, slipped and fell.
Plaintiff commenced this action against defendants Clark Trading Corporation (the owner of thepremises), Price Chopper Operating Company, Inc. and the Golub Corporation (hereinaftercollectively referred to as Price Chopper) and defendant JRP Enterprises, Inc. (the company withwhich Price Chopper contracted to provide snowplowing services), seeking [*2]compensation for injuries that he alleges he sustained as a result of thefall. Price Chopper moved for summary judgment and JRP cross-moved for summary judgmentdismissing all claims. Supreme Court granted the motion and cross motion. Because we find thatquestions of fact exist with respect to defendants' liability, we reverse.
For Price Chopper to prevail on its summary judgment motion, it must be established as a matter oflaw that the property in question was maintained " 'in a reasonably safe condition and that [PriceChopper] neither created the allegedly dangerous condition existing thereon nor had actual orconstructive notice thereof' " (Mokszki vPratt, 13 AD3d 709, 710 [2004], quoting Richardson v Rotterdam Sq. Mall, 289AD2d 679, 679 [2001]). Here, Supreme Court properly found that Price Chopper met its initialburden of demonstrating that it reasonably maintained the parking lot through, among other things,evidence of a contractual arrangement with JRP to keep all areas free of snow and the records of JRPshowing the snow maintenance work that JRP had performed. Thus, the burden shifted to plaintiff toraise a question of fact requiring a trial (see CPLR 3212 [b]; Alvarez v ProspectHosp., 68 NY2d 320, 324, 326 [1986]; Zuckerman v City of New York, 49 NY2d 557,562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]).
Plaintiff testified that, on the night he fell, the pavement of the parking lot appeared wet, there was alarge pile of snow approximately 30 feet from where he parked, and the parking lot sloped away fromthe pile of snow. Plaintiff also provided the affidavit of a meteorologist and weather records for the timeperiod immediately preceding his fall. Based upon the relevant weather data and an analysis of theweather conditions, the meteorologist opined that those conditions created and contributed to the iceformation where plaintiff fell.[FN*]Further, defendants' records showed no snow or ice maintenance performed on the parking lot fromJanuary 28, 2004 through February 2, 2004. Significantly, Joshua Plue, JRP's principal, testified that heknew that snow tended to melt and refreeze in the area where plaintiff fell. In addition, Plue testified thatthere were other designated areas around the perimeter of the parking lot at "points furthest away fromentrances of the store" where JRP also piled snow in accordance with Price Chopper's instructions.Considering the evidence in the light most favorable to plaintiff (see Gadani v Dormitory Auth. of State of N.Y., 43 AD3d 1218, 1219[2007]), we find that plaintiff has raised questions of fact sufficient to require a trial.
We also reject JRP's contention that it owed no duty to plaintiff as a matter of law. There issufficient evidence to conclude that JRP created a dangerous condition by plowing snow into a pile inthe location in question in view of the risk created by the freezing of the resulting runofftherefrom—thereby falling within an exception to the general rule that breach of a contractualobligation does not give rise to a duty to a noncontracting third party (see Torosian v Bigsbee Vil. HomeownersAssn., 46 AD3d 1314, 1316 [2007]; cf. Espinal v Melville Snow Contrs., 98 NY2d136, 141, 142, 143 [2002]; Gadani v Dormitory Auth. of State of N.Y., 43 AD3d at1219-1220). In addition, plaintiff has raised a question of fact as to whether JRP [*3]breached its duty to plaintiff and, if so, whether such breach was aproximate cause of plaintiff's injury (see Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3dat 1316). Thus, JRP's cross motion should also have been denied.
Cardona, P.J., Peters, Carpinello and Kavanagh, JJ., concur. Ordered that the order is reversed,on the law, with costs, and motions denied.
Footnote *: The meteorologist indicated, amongother things, that the amount of accumulated snow on the ground in the general area decreased duringthe period from January 26, 2004 through February 1, 2004. Defendants' argument to thecontrary—that the temperatures on record would not have allowed for any melting to take place—creates an issue of fact.