| Kaehler-Hendrix v Johnson Controls, Inc. |
| 2009 NY Slip Op 00193 [58 AD3d 604] |
| January 13, 2009 |
| Appellate Division, Second Department |
| Jennifer Kaehler-Hendrix, Appellant, v Johnson Controls,Inc., et al., Respondents. |
—[*1] DeCicco, Gibbons & McNamara, P.C., New York, N.Y. (James W. Kachadoorian and AnkurH. Doshi of counsel), for respondents Johnson Controls, Inc., and Johnson Controls WorldServices, Inc. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondents Lewis Landscaping, Ltd., and William R. Lewis, doing business as LewisLandscaping, Inc. Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro,Jr., Gina Bernardi Di Folco, and Adonaid Casado of counsel), for respondent Snow ManagementGroup.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Dutchess County (Dolan, J.), dated May31, 2007, as granted that branch of the motion of the defendants Johnson Controls, Inc., andJohnson Controls World Services, Inc., which was for summary judgment dismissing thecomplaint insofar as asserted against them, and granted those branches of the cross motion of thedefendants Lewis Landscaping, Ltd., and William R. Lewis, doing business as LewisLandscaping, Ltd., and the separate cross motion of the defendant Snow Management Group,which were for the same relief.[*2]
Ordered that the order is modified, on the law, bydeleting the provision thereof granting that branch of the motion of the defendants JohnsonControls, Inc., and Johnson Controls World Services Inc., which was for summary judgmentdismissing the complaint insofar as asserted against them, and substituting therefor a provisiondenying that branch of the motion; as so modified, the order is affirmed insofar as appealedfrom, with one bill of costs payable by the defendants Johnson Controls, Inc., and JohnsonControls World Services, Inc., to the plaintiff, and one bill of costs payable by the plaintiff to thedefendants Lewis Landscaping, Ltd., William R. Lewis, doing business as Lewis Landscaping,Ltd., and Snow Management Group.
On February 19, 2003 at 6:15 a.m. the plaintiff, an employee of IBM, arrived for work atIBM's East Fishkill facility. While the weather was clear and cold, there were approximately fourto six inches of snow on the ground as a result of a blizzard two days earlier, which had resultedin an accumulation of more than eight inches of snow. The plaintiff exited her car, carrying abackpack over her right shoulder, a grocery bag in her right hand, and a cup of coffee in her lefthand and, as she began walking toward the building on the roadway, she fell on what sheidentified as ice, allegedly sustaining injuries. Although the parking spaces had snow on them,the driving lane between the spaces had been plowed.
The plaintiff commenced the instant action to recover damages for her personal injuriesagainst Johnson Controls, Inc., and Johnson Controls World Services, Inc. (hereinafter togetherthe Johnson defendants), the companies responsible under contract for maintaining the IBMpremises, Snow Management Group (hereinafter Snow), the company contracted by Johnson toperform snow removal services, and Lewis Landscaping, Ltd., and William R. Lewis, doingbusiness as Lewis Landscaping, Ltd. (hereinafter the Lewis defendants), the companiessubcontracted by Snow to actually remove snow and ice from the IBM premises.
Following discovery, the Johnson defendants moved for summary judgment, inter alia,dismissing the complaint insofar as asserted against them on the ground that they neither createdor caused the icy condition, nor had actual or constructive notice of the icy condition. The Lewisdefendants and Snow separately cross-moved for summary judgment, among other things,dismissing the complaint insofar as asserted against them on the ground that they owed no dutyof care to the plaintiff and were not negligent. The Supreme Court, inter alia, awarded thedefendants summary judgment dismissing the complaint. We modify.
Ordinarily, the breach of a contractual obligation to maintain and inspect building premisesis not sufficient in and of itself to impose tort liability upon the promisor to noncontractingthird-parties (see Espinal v Melville Snow Contrs., 98 NY2d 136, 139 [2002]; Palkav Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589 [1994]; Eaves Brooks CostumeCo. v Y.B.H. Realty Corp., 76 NY2d 220, 226 [1990]). There are, however, three exceptionsto this general rule: "a party who enters into a contract to render services may be said to haveassumed a duty of care—and thus be potentially liable in tort—to third persons: (1)where the contracting party, in failing to exercise reasonable care in the performance of hisduties, 'launche[s] a force or instrument of harm'; (2) where the plaintiff detrimentally relies onthe continued performance of the contracting party's duties; and (3) where the contracting partyhas entirely displaced the other party's duty to maintain the premises safely" (Espinal vMelville Snow Contrs., 98 NY2d at 140 [citations omitted]; see Abbattista v King's Grant MasterAssn., Inc., 39 AD3d 439, 440 [2007]; Scott v Bergstol, 11 AD3d 526 [2004]; Nobles v Procut Lawns Landscaping &Contr., Inc., 7 AD3d 768 [2004]; Boddie v New Plan Realty Trust, 304 AD2d693, 694 [2003]). A property owner, or one who has displaced the owner's duty to maintain the[*3]premises safely, "may be liable for a hazardous snow or icecondition existing on the property as a result of the natural accumulation of snow or ice onlyupon a showing that it had actual or constructive notice of the hazardous condition and that asufficient period of time elapsed since the cessation of the precipitation to permit the party toremedy the condition" (Lee-Pack v 1Beach 105 Assoc., LLC, 29 AD3d 644, 644 [2006]; see Fahey v Serota, 23 AD3d 335, 336-337 [2005]; Ronconi v Denzel Assoc., 20 AD3d559, 560 [2005]; McConologue vSummer St. Stamford Corp., 16 AD3d 468, 469 [2005]).
Contrary to the Supreme Court's determination, after the Johnson defendants met their primafacie burden of demonstrating that they neither created nor had notice of the alleged dangerousicy condition at the subject premises (see Gordon v American Museum of Natural History,67 NY2d 836, 837 [1986]; Lenti vInitial Cleaning Servs., Inc., 52 AD3d 288 [2008]; Scott v Redl, 43 AD3d 1031, 1033 [2007]; Goodwin v Knollsat Stony Brook Homeowners Assn., 251 AD2d 451, 452 [1998]), the plaintiff raised triableissues of fact precluding an award of summary judgment in their favor (see Buroker v Country View EstateCondominium Assn., Inc., 54 AD3d 795 [2008]; Ellers v Horwitz Family Ltd. Partnership, 36 AD3d 849, 851[2007]; Tucciarone v Windsor Owners Corp., 306 AD2d 162, 162-163 [2003]; cf.Simmons v Metropolitan Life Ins. Co., 84 NY2d 972, 973 [1994]). Given, inter alia,Johnson's undisputed comprehensive and exclusive maintenance obligation over the premisesand evidence of a 17-hour gap between the blizzard and the accident, triable issues of fact arepresented as to whether Johnson had constructive notice of the icy condition (see Ellers vHorwitz Family Ltd. Partnership, 36 AD3d at 851-852). Accordingly, that branch of theJohnson defendants' motion which was for summary judgment dismissing the complaint insofaras asserted against them should have been denied (see Buroker v Country View EstateCondominium Assn., Inc., 54 AD3d at 795; Hutchinson v Medical Data Resources, Inc., 54 AD3d 362, 363[2008]).
However, the Supreme Court properly determined that Snow and the Lewis defendantsestablished their prima facie entitlement to judgment as a matter of law dismissing the complaintinsofar as asserted against them, and the plaintiff failed to raise triable issues of fact inopposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Neither Snow nor the Lewis defendants assumed a duty to exercise reasonable care to preventforeseeable harm to the plaintiff by virtue of their snow removal contracts (see Espinal vMelville Snow Contrs., 98 NY2d at 140; Carricato v Jefferson Val. Mall Ltd.Partnership, 299 AD2d 444 [2002]; Trainor v Dayton Seaside Assoc. No. 3, 282AD2d 524, 524-525 [2001]). Their limited contractual undertakings were not comprehensive andexclusive property-maintenance obligations intended to displace Johnson's duty to safelymaintain the property (see Nobles v Procut Lawns Landscaping & Contr., Inc., 7 AD3dat 769; Torella v Benderson Dev. Co., 307 AD2d 727, 728-729 [2003]; Riekers vGold Coast Plaza, 255 AD2d 373, 374 [1998]). Nor is there any evidence that the plaintiffdetrimentally relied on either Snow or the Lewis defendants' performance of their duties or thatthe actions of those defendants "launched a force or instrument of harm" (Abbattista v King'sGrant Master Assn., Inc., 39 AD3d at 440; see Wheaton v East End Commons Assoc., LLC, 50 AD3d 675,677 [2008]; Pavlovich v Wade Assoc., 274 AD2d 382, 383 [2000]; Bugiada v Iko,274 AD2d 368, 369 [2000]). Fisher, J.P., Balkin, McCarthy and Leventhal, JJ., concur.