| Peters v United Ref. Co. of Pa. |
| 2008 NY Slip Op 10421 [57 AD3d 1512] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| Darwin L. Peters, Jr., et al., Plaintiffs, v United Refining Company ofPennsylvania et al., Defendants and Third-Party Plaintiffs-Respondents. Gordon B. Scott, DoingBusiness as Scott's Lawn and Landscaping Services, Third-PartyDefendant-Appellant. |
—[*1] Wright, Wright and Hampton, Jamestown (Edward P. Wright of counsel), for third-partyplaintiffs-respondents.
Appeal from an order of the Supreme Court, Cattaraugus County (Michael L. Nenno, A.J.),entered April 24, 2008 in a personal injury action. The order, insofar as appealed from, denied themotion of third-party defendant for summary judgment dismissing the third-party complaint.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on the lawwithout costs, the motion is granted and the third-party complaint is dismissed.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by plaintiffDarwin L. Peters, Jr. when he slipped and fell on ice in a parking lot allegedly owned by defendantsand third-party plaintiffs (defendants). Supreme Court erred in denying third-party defendant's motionfor summary judgment dismissing the third-party complaint, which sought contribution andindemnification. According to defendants, third-party defendant negligently created or exacerbated adangerous condition by piling mounds of snow on the perimeter of the property, which then melted andrefroze (see generally Espinal v Melville Snow Contrs., 98 NY2d 136, 141-142 [2002]).Contrary to defendants' contention, the snow removal contract required third-party defendant to plowthe snow on [*2]the property, not to remove the snow. The provisionrelied upon by defendants in the contract in support of their contention that third-party defendant wasrequired to remove the snow simply set forth the pricing in the event that third-party defendant wasrequired to clear the snow from the premises by the use of a loader or dump truck. We conclude thatthird-party defendant met his burden on the motion by establishing that he plowed snow on the propertytwo days before the accident and was not requested in accordance with the contract to apply sand orsalt either on that day or on the day of the accident, and defendants failed to raise an issue of fact todefeat the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980])."[B]y merely plowing the snow, as required by the contract, [third-party] defendant's actions could notbe said 'to have created or exacerbated a dangerous condition' " (Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 361 [2007], quotingEspinal, 98 NY2d at 142). Present—Martoche, J.P., Smith, Centra, Green and Pine,JJ.