| Lattimore v First Mineola Co. |
| 2009 NY Slip Op 01621 [60 AD3d 639] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 26—Beverly Lattimore et al., Appellants, v FirstMineola Co. et al., Respondents. |
—[*1] Tromello, McDonnell & Kehoe, Melville, N.Y. (Kevin J. Bryant of counsel), for respondentsFirst Mineola Co., Finkelstein Realty, Inc., Lazarus Burman Properties, Inc., and JDHJ Co.,LLC. Richard T. Lau, Jericho, N.Y. (Nancy Goodman of counsel), for respondent SetauketContracting Corp.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1), as limitedby their brief, from so much of an order of the Supreme Court, Nassau County (Feinman, J.),dated August 16, 2007, as granted that branch of the motion of the defendants First Mineola Co.,Finkelstein Realty, Inc., Lazarus Burman Properties, Inc., and JDHJ Co., LLC, which was forsummary judgment dismissing the complaint insofar as asserted against them, and that branch ofthe cross motion of the defendant Setauket Contracting Corp. which was for summary judgmentdismissing the complaint insofar as asserted against it, and (2) from a judgment of the same courtdated September 12, 2007, which, upon the order dated August 16, 2007, is in favor of thedefendant Setauket Contracting Corp. and against them dismissing the complaint insofar asasserted against that defendant, and, in effect, severed the complaint insofar as asserted againstthe remaining defendants. The notice of appeal from the order dated August 16, 2007, is deemedalso to be a notice of appeal from the judgment (see CPLR 5501 [c]).
Ordered that the appeal from so much of the order dated August 16, 2007, as granted thatbranch of the motion of the defendant Setauket Contracting Corp. which was for summaryjudgment dismissing the complaint insofar as asserted against it is dismissed; and it is further,[*2]
Ordered that the order dated August 16, 2007, ismodified, on the law, by deleting the provision thereof granting those branches of the motion ofthe defendants First Mineola Co., Finkelstein Realty, Inc., Lazarus Burman Properties, Inc., andJDHJ Co., LLC, which was for summary judgment dismissing the complaint insofar as assertedagainst the defendants First Mineola Co. and Finkelstein Realty, Inc., and substituting therefor aprovision denying those branches of the motion; as so modified, the order is affirmed insofar asreviewed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the plaintiffs are awarded one bill of costs, payable by the defendants FirstMineola Co., Finkelstein Realty, Inc., Lazarus Burman Properties, Inc., and JDHJ Co., LLC; andit is further,
Ordered that the defendant Setauket Contracting Co. is awarded one bill of costs, payable bythe plaintiffs.
The appeal from so much of the intermediate order as granted that branch of the motion ofthe defendant Setauket Contracting Corp. which was for summary judgment dismissing thecomplaint insofar as asserted against it must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241 [1976]). The issues raised on the appeal from that portion of the order are brought upfor review and have been considered on the appeal from the judgment (see CPLR 5501[c]).
The plaintiff Beverly Lattimore allegedly sustained injuries in an incident that occurred atapproximately 11:30 a.m. on December 15, 2003, when she slipped and fell on an icy sidewalkin front of an office building located on First Street in Mineola. The building was owned by thedefendant First Mineola Co. and managed by the defendant Finkelstein Realty, Inc., which hadhired the defendant Setauket Contracting Corp. to perform snow-removal services at thepremises for the winter of 2003-2004. In the order appealed from, the Supreme Court granted themotion of the defendants First Mineola Co., Finkelstein Realty, Inc., Lazarus Burman Properties,Inc., and JDHJ Co., LLC (hereinafter the building defendants), inter alia, for summary judgmentdismissing the complaint insofar as asserted against them, and the cross motion of the defendantSetauket Contracting Corp. (hereinafter Setauket), inter alia, for summary judgment dismissingthe complaint insofar as asserted against it.[*3]
The Supreme Court properly granted that branch of themotion of the building defendants which was for summary judgment dismissing of the complaintinsofar as asserted against the defendants Lazarus Burman Properties, Inc., and JDHJ Co., LLC.The building defendants submitted evidence that the defendant Lazarus Burman Properties, Inc.,had previously managed the subject property, but that it had ceased performing that function in2000 or 2001. The plaintiff did not submit any evidence to the contrary. The building defendantsalso submitted evidence that the defendant JDHJ Co., LLC, had no connection to the subjectproperty at the time of this occurrence, and that evidence was not controverted by the plaintiffs(see Wheaton v East End CommonsAssoc., LLC, 50 AD3d 675, 676-677 [2008]).
However, the Supreme Court erred in granting that branch of the motion of the buildingdefendants which was for summary judgment dismissing the complaint insofar as assertedagainst the defendants First Mineola Co. and Finkelstein Realty, Inc. "An owner of real property,or a party in possession or control thereof, may be liable for a hazardous snow or ice conditionexisting on the property as a result of the natural accumulation of snow or ice only upon ashowing that it had actual or constructive notice of the hazardous condition and that a sufficientperiod of time elapsed since the cessation of the precipitation to permit the party to remedy thecondition" (Lee-Pack v 1 Beach 105Assoc., LLC, 29 AD3d 644, 644 [2006]). The defendants First Mineola Co. andFinkelstein Realty, Inc., failed to demonstrate their prima facie entitlement to judgment as amatter of law, since they failed to present any evidence as to the condition of the premises or anyevidence showing that they lacked constructive notice of the icy condition in the area where theinjured plaintiff allegedly fell (see Wheaton v East End Commons Assoc., LLC, 50AD3d at 677; Amidon v Yankee Trails,Inc., 17 AD3d 835, 837 [2005]; see also Buroker v Country View Estate Condominium Assn., Inc., 54AD3d 795 [2008]; see generally Zuckerman v City of New York, 49 NY2d 557[1980]). Since the defendants First Mineola Co. and Finkelstein Realty, Inc., did not meet theirburden, there is no need to address the sufficiency of the plaintiffs' submissions in opposition tothat branch of their motion which was for summary judgment dismissing the complaint insofar asasserted against them (see Hutchinson vMedical Data Resources, Inc., 54 AD3d 362, 363 [2008]; Carthans v Grenadier Realty Corp., 38AD3d 489 [2007]). Moreover, as the plaintiffs contend, since there is no evidence in therecord as to the contract between First Mineola Co. and Finkelstein Realty, Inc., it cannot bedetermined whether the defendant Finkelstein Realty, Inc., assumed a duty of care to the plaintiffthat displaced the duty of the defendant First Mineola Co. (see Espinal v Melville SnowContrs., 98 NY2d 136, 140 [2002]).[*4]
Finally, the Supreme Court properly granted the branchof Setauket's motion which was for summary judgment dismissing the complaint insofar asasserted against it. "A contractor or subcontractor's limited contractual undertaking to providesnow removal services generally does not give rise to a duty of care to persons not a party to thecontract, absent evidence that the contractor or subcontractor assumed a comprehensivemaintenance obligation, created or exacerbated a dangerous condition or launched a force orinstrument of harm, or that the plaintiff detrimentally relied on the contractor's continuedperformance of its obligation" (Georgotas v Laro Maintenance Corp., 55 AD3d 666, 667 [2008];see Espinal v Melville Snow Contrs., 98 NY2d at 140; Wheaton v East EndCommons Assoc., LLC, 50 AD3d at 677). In opposition to Setauket's motion, the plaintiffscontended that the evidence raised issues of fact as to whether the defendant Setauket assumed acomprehensive and exclusive maintenance obligation at the premises. However, the defendantSetauket established, prima facie, that it did not assume a comprehensive and exclusivemaintenance obligation at the premises. Pursuant to the verbal contract between Setauket andFinkelstein Realty, Inc., the property manager, Setauket was required to perform snow removalonly upon an accumulation of at least two inches of snow, and to apply salt or sand upon a lesseraccumulation. There was also evidence that the property manager inspected the work performedby Setauket and reserved the right to require it to return to the property if its work was deemedunsatisfactory. Further, the property manager, Finkelstein Realty, Inc., retained generalresponsibility for the maintenance of the premises. That evidence established, prima facie, thatSetauket did not assume a comprehensive and exclusive maintenance obligation at the premises(see Espinal v Melville Snow Contrs., 98 NY2d at 140; Georgotas v LaroMaintenance Corp., 55 AD3d at 667; Wheaton v East End Commons Assoc., LLC,50 AD3d at 677). In opposition, the plaintiffs failed to raise a triable issue of fact as towhether Setauket assumed a comprehensive maintenance obligation giving rise to a duty of careto third parties (see Espinal v Melville Snow Contrs., 98 NY2d at 141; Linarello vColin Serv. Sys., Inc., 31 AD3d 396, 397 [2006]; Mahaney v Neuroscience Ctr., 28 AD3d 432, 433 [2006]; Parker v Rust Plant Servs., Inc., 9AD3d 671, 673-674 [2004]; Torella v Benderson Dev. Co., 307 AD2d 727, 728[2003]). Accordingly, the Supreme Court properly granted that branch of Setauket's cross motionwhich was for summary judgment dismissing the complaint insofar as asserted against it. Skelos,J.P., Santucci, Balkin and Eng, JJ., concur.